CO 

o 


r 


REESE   LIBRARY 


.  _n_Ji — n, 


UNIVERSITY  OF  CALIFORNIA. 
Deceived         MAR  15  1893         l8g 

^Accessions  No. 5*3  5^ '          Class  No. 


THE 


UNITED    STATES 


AND  THE 


STATES 


UNDER  THE  CONSTITUTION 


BY 

CHRISTOPHER  STUART  PATTERSON, 

OF  THE  PHILADELPHIA   BAR. 


/f*3 

''  PKIVEBBITT 


PHILADELPHIA: 

T.  &  J.  W.  JOHNSON  &  CO., 

535  CHESTNUT  STREET. 
1888. 


,5-05-71 

COPYEIQHT,  1888, 
BY 

CHBISTOPHEB  STUART  PATTERSON. 


PREFACE. 


This  book  has  not  been  written  to  give  expression  to 
any  theories,  either  in  politics  or  in  law.  Its  only 
purpose  is  to  show  by  a  classification  and  an  analysis  of 
the  judgments  of  the  Supreme  Court  of  the  United 
States,  what  the  relations  of  the  United  States  and  the 
states  are  under  the  Constitution,  as  judicially  construed 
by  the  court  of  last  resort.  C.  S.  P. 

CHESTNUT-HILL. 

9  April,  1888. 


(3) 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

THE  RELATION  OF  THE  STATES  TO  THE  UNITED  STATES  AND  TO  EACH  OTHER. 

1.  The  sanction  of  the  Constitution. 

2.  The  indissolubility  of  the  Union. 
>/3.  The  autonomy  of  the  states. 

4.  The  delegated  character  and  limited  powers  of  the  government  of  the 

United  States. 

5.  The  Federal  supremacy. 

6.  The  restraints  upon  the  states, 

7.  The  force  and  effect  of  the  preamble  to  the  Constitution. 

CHAPTER  II. 

THE   IMPLIED    POWERS. 

8.  The  necessity  of  their  existence. 
9    Their  constitutional  recognition. 

10.  The  test  of  the  relation  of  the  means  to  the  end. 

11.  Illustrations  of  the  exercise  of  the  implied  powers. 

12.  The  legal  tender  question. 

13.  The  possible  scope  of  the  legal  tender  cases  as  authorities. 

CHAPTER  III. 

TAXATION. 

14.  Taxation  defined  and  limited. 

15.  Taxation  by  the  United  States. 

16.  Direct  taxation. 

17.  The  requirement  of  uniformity. 

18.  Exemption  of  state  agencies  from  taxation  by  the  United  States. 

19.  Charges  which  are  not  taxes  exempt  from  constitutional  restraints. 

V 


VI  TABLE    OF    CONTENTS. 

20.  Taxation  by  the  states. 

21.  The  expressed  restraints  upon  state  taxation. 

22.  The  implied  restraint  upon  state  taxation  resulting  from  the  federal 

supremacy. 

23.  Taxation  of  national  banks. 

24.  State  taxation  as  affected  by  the  prohibition  of  the  impairment  of  the 

obligation  of  contracts. 

25.  State  taxation  as  affected  by  the  grant  to  Congress  of  the  power  of 

regulating  commerce. 


CHAPTER  IV. 

THE  REGULATION   OF   COMMERCE. 

26.  The  constitutional  provisions. 

27.  The  history  of  the  commercial  clause. 

28.  Commerce  defined. 

29.  The  regulation  of  commerce  defined. 

30.  The  general  distinction  between  the  powers  of  the  United  States  and 

of  the  states  over  commerce. 

31.  Navigable  waters. 

32.  Title  to  the  soil  under  navigable  waters. 

33.  The  regulation  of  navigation. 

34.  The  regulation  of  subjects  of  commerce. 

35.  The  taxation  of  ships. 

36.  Duties  on  tonnage. 

37.  The  taxation  of  the  water  transportation  of  passengers. 

38.  The  taxation  of  goods  in  interstate  commerce. 

39.  Discriminating  taxation   against  products  and  manufactures  of  other 

states. 

40.  The  taxation  of  exports  by  the  United  States. 

41.  State  taxation  of  imports  and  exports,  and  inspection  laws. 

42.  Improvements  of  navigation. 

43.  Dams  and  bridges. 

44.  Ferries. 

45.  Wharves  and  piers. 

46.  Pilotage. 

47.  Quarantine  and  sanitary  regulations. 

48.  Port  dues. 

49.  Port  regulations. 

50.  Preferences  of  ports. 

51.  Interstate  railway  transportation. 

52.  Railway  tolls. 

53.  The  police  regulation  of  railway  ?. 

54.  State  taxation  of  interstate  transportation  by  railways. 

55.  Telegraphs 

56.  Commerce  with  the  Indian  tribes. 


TABLE  OF  CONTENTS.  VU 

CHAPTER  V. 

THE  IMPAIRMENT  OF  THE  OBLIGATION  OP  CONTRACTS. 

57.  The  prohibition  affects  only  laws  passed  by  states. 

58.  The  term  "  law  "  defined. 

59.  Judgments  of  state  courts  not  conclusive  either  as  to  the  non  existence 

or  non-impairment,  of  contracts. 

60.  The  obligation  of  a  contract  defined. 

61.  Legislation  as  to  remedies. 

62.  The  term  "contracts"  defined. 

63.  State  insolvent  laws. 

64.  Judgments  as  contracts. 

65.  Municipal  taxation. 

66.  History  of  the  prohibition. 

67.  State  grants. 

68.  Express  contracts  of  exemption  from  taxation. 

69.  Express  grants  of  peculiar  privileges. 

.70.  Contracts  between  a  state  and  its  political  subdivisions. 

71.  Implied  contracts  in  charters  of  incorporation. 

72.  Implied  corporate  exemption  from  taxation. 

73.  Implied  grants  of  peculiar  privileges. 

74.  Implied  exemption  from  the  operation  of  the  police  power. 

75.  Implied  contracts  as  to  matters  of  public  concern. 

76.  The  withdrawal  by  a  state  of  its  consent  to  be  sued. 

77.  The  force  and  effect  of  the  prohibition  as  construed  by  the  Supreme 

Court. 

CHAPTER  VI. 

EX  POST  FACTO  LAWS  AND  BILLS  OF  ATTAINDER. 

78.  The  constitutional  provisions. 

79.  The  distinction  between  retrospective  and  ex  post  facto  laws. 

80.  Ex  post  facto  laws  defined. 

81.  Illustrations  of  ex  post  facto  laws. 

82.  Illustrations  of  laws  which  are  not  ex  post  facto. 

83.  Bills  of  attainder  and  bills  of  pains  and  penalties. 


CHAPTER 

THE  PROHIBITION  OF  STATE  BILLS  OP  CREDIT. 

84.  Bills  of  credit  defined. 

85.  What  are,  and  what  are  not,  bills  of  credit. 


Viii  TABLE   OF   CONTENTS. 

CHAPTER  VIII. 

STATE  COMPACTS. 

86.  What  compacts  are  permitted,  and  what  are  forbidden^, 

CHAPTER  IX. 

FUGITIVES  FROM  JUSTICE. 

87.  The  constitutional  provision. 

88.  The  concurrent  jurisdiction  of  the  federal  and  state  courts,, 

CHAPTER  X. 

THE  JUDICIAL   POWER. 

89.  The  necessity  for  the  existence  of  a  judicial  department  of  the  United 

States. 

90.  The  constitutional  provisions. 

91.  The  terms  of  the  grant  of  federal  jurisdiction. 

92.  The  exclusive  jurisdiction. 

93.  The  original  jurisdiction. 

94.  Removal  of  causes  from  state  courts  to  the  courts  of  the  United  States, 

95.  The  appellate  and  supervisory  jurisdiction. 

96.  The  requisites  of  a  judicial  case. 

97.  Courts-martial. 

98.  Impeachment. 

99.  The  judicial  construction  of  the  Constitution. 

100.  The  XI  Amendment. 

101.  Section  2  of  Article  III  of  the  Constitution,  and  the  IV  Amendment. 

102.  The  V  Amendment. 

103.  The  VI  Amendment. 

104.  The  VII  Amendment. 

105.  The  exemption  of  fe  leral  process  from  state  control. 

106.  Limitation  of  federal  process  by  the  reserved  rights  of  the  states. 

107.  The  .limitations    of  state   jurisdiction  and   process  by    the   federal 

supremacy. 

108.  The  rule  as  to  conflict  of  jurisdiction. 

109.  The  XIV  Amendment  as  affecting  state  jurisdiction. 

110.  The  effect  of  Section  1  of  Article  IV  of  the  Constitution. 

CHAPTER  XI. 

RIGHTS  OF   PERSON  AND  OF  PROPERTY. 

111.  Citizenship  of  the  United  States. 

112.  Citizenship  of  a  state. 


TABLE   OF   CONTENTS.  IX 

113.  The  right  of  suffrage. 

114.  The  right  of  serving  on  juries. 

115.  Congressional  regulation  of  the  election  of  senators  and  representa- 

tives. 

116.  Personal  and  property  rights. 

117.  The  rights  within  a  state  of  citizens  of  other  states. 

118.  Foreign  corporations. 

119.  The  XIII  Amendment. 

120.  The  XIV  Amendment. 

121.  The  police  power. 

CHAPTER  XII. 

THE   FEDERAL    SUPREMACY    AND    THE    RESERVED    RIGHTS  OF  THE    STATES. 

1 22.  The  constitutional  declaration  of  the  federal  supremacy. 

123.  The  supremacy  of  the  Constitution. 

124.  The  supremacy  of  the  acts  of  Congress. 

125.  The  supremacy  of  treaties. 

126.  The  results  of  federal  supremacy. 

„  127.  The  constitutional  reservation  of  the  rights  of  the  stntes. 

128.  The  nature  and  extent  of  those  reserved  rights. 

129.  The  importance  of  the  preservation  of  the  rights  of  the  states. 


TABLE  OF  CASES  CITED. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


Abbott,  Kenaud  t>.,  116  U.  S.  277  245 
Ableman  v.  Booth,  21  How.  506 

11,  237 
Achison  v.  Huddleson,  12  How. 

293  123 

Adams,   County  of,   Osborne  v., 

106  U.  S.  181,  109  id.  1  20 
Adams  v.  Nashville,  95  U.  S.  19  31 
jEina  Co.,  Aldrich  v.,  8  Wall.  591  59 
Aiken,  O.  P.  Co.  v.,  121  U.  S.  444 

19,  106 
Alabaman  Georgia,  23  How.  505 

189,  198 
Alabama,   Bank   of,  v.  Dalton,  9 

How.  522  234,  244,  248 

Pace  v.,  106  U.  S.  583  265 

E.  R.  v.,  101  U.  S.  832  180 

Alderson,  Freeman  v.,  119  U.  S. 

185  246 

Allen  v.  Louisiana,  103  U.  S.  80    274 
v.  Newberry,  21  How.  244  47, 197 
Mmy  v.  California,  24 How.  169 

36,  41,  72,  84 
Albany  Bridge  Case,  The,  2  Wall. 

403  97 

Ailing,  Sherlock  v.,  93  U.  S.  99  60 
Allen,  Crapo  v.,  I  Sprague,  184  60 
Alabama,  Boyd  v.,  94  U.  S.  (545 

178,  269 

Smith  v.,  124  U.S.  465  268 

Alexandria  Council,  Downham  v., 

10  Wall.  173  35,  81,  258 

Aidrich  v.  .Etna  Co.,  8  Wall.  491  59 
Alabama,  Bank  of,  Darrington  v., 

13  Plow.  12  188 

A.  Mfg.  Co.,  Head  v.,  113  U.  S.  9  240 
Ames  v.  Kansas,  111  U.  S.  449 

196,205,209 
American  Ins.  Co.,  Grace  v.,  109 

U.S.  278  199 

Amedy,  U.  S.  v.,  11  Wheat.  392  243 
American  Steamboat  Co.  v.  Chase, 

16  Wall.  522  60 

American   Bridge   Co.,  Cardwell 

v,  113  U.S.  205  98 


PAGE 

Amy,  Bath  County  v.,  13  Wall. 

244  233 

v.  Shelby  County,  114  U.  S. 

387    "  179 

v.  Supervisors,  11  Wall.  136    233 

Anderson  v.  Dunn,  6  Wheat.  204     11 

McMillen  v.,  95  U.  S.  37        240 

Terry  v.,  95  U.  S.  628  150 

Antoni  v.  Greenhow,  107  U.  S. 

769  152 

Arkansas,  Curran  v.}  15  How.  304 

172,  223 

Beers  v.,  20  How.  527  180,  181 

Bank  v.,  20  How.  530      180 

Armstrong  v.  Lear,  8  Pet.  52         212 

v.  Carson,  2  Dall.  303  244 

Aronson  v.  Murphy,  109  U.  S.  238  232 

Arrowsmith  v.  Harmoning,  118 

U.  S.  194  242 

Arredondo,  U.  S.  v.,  6  Pet.  691  275 
Aspinwall  v.  Daviess  County,  22 

How.  364  154 

Assessors,  The,  Van  Allen  v.,  3 

Wall.  573  29,  30 

Asylum  v.  New  Orleans,  105  U.  S. 

362  33,  167,  168 

Atlee,  M.  &  St.  P.  R.  R.  v.,  94  U. 

S.179  .  178 

Aurora  City,  West  v.,  6  Wall.  39  209 
Augusta,  Bank  of,  t;.  Earle,  13  Pet. 

519  40,  260 

Augusta,  Home  Ins.  Co.  v.,  93  U. 

S  116  34,  171 

Austin,  Low  v.,  13  Wall.  29  25,  83 
Ayres,  In  re,  123  U.  S.  524  180,  220 
A.  &  G.  R.  R.  v.  Georgia,  98  U. 

S.  359  169 

Bates  v.  Clark,  95  U.  S.  204  224 

Bacon  v.  Howard,  20  How.  22  244 
Bailey  v.Magwire,  Collr.,  22  Wall. 

215  177 

Ballard,  Caperton  v.,  14  Wall.  238  243 
Bank  of  Alabama  v.  Dalton,  9 

How.  522  234,  244,  248 

xi 


Xll 


TABLE   OF    CASES    CITED. 


Bank  of    Columbia  v.  Okely,  4 

Wheat,  235  231 

Bank  of  U.  8.  v.  Deveaux,  5  Cr. 

61  259 

Ball,  The  Daniel,  10  Wall.  557 

46,  52,  75,  197 
Baltimore,  Barren  v.,  7  Pet.  243 

224,  254 
Guy  v.,  100  U.  S.  434 

35,  97,  106,  258 
Bank  of  U.  S.,  Vorhees  v.,  10  Pet. 

449  245 

Barry,  Gunn  v,  15  Wall.  610  146,  153 
Barbier  v.  Connelly,  113  U.  S.  27  269 
Barbour,  Barton  v.,  104  U.  S.I 26  230 
Bartemever  v.  Iowa,  18  Wall.  129  267 
Barron  v.  Baltimore,  7  Pet.  243 

224,  254 

Barton  v.  Barbour,  104  U.  S.  126  230 
Barrett  v.  Holmes,  102  U.  S.  651  241 
Barnard,  Clark  v.,  108  U.  S.  436  219 
Bank  of  Kentucky,  Briscoe  v  ,  11 

Pet.  317     2,  187,  188,  215,  223 
Banks,  The,    v.   The  Mayor,  7 

Wall.  16  26 

Bank  v.  Supervisors,  7  Wall.  26  26 
Banks,  Carneal  v.,  10  Wheat. 

181  275 

Bank  of  Georgia,  Breithaupt  v.,  1 

Pet.  238  199 

Bank  of  Washington?;.  Arkansas, 

20  How.  530  180 

Bain,  Ex  pane.  121  U.  S.  1  226 

Bank   of   Hamilton   v.  Dudley's 

Lessee,  2  Pet.  492  193 

Baldwin  v.  Franks,  120  U.  S.  678 

274,  275 
v.  Hale,  1  Wall.  223 

154,  157,  158 

Barron  v.  Burnside,  121  U.  S.  186  262 
Barings  v.  Dabney,  19  Wall.  1  172 
Barber  v.  Barber,  21  How.  582  197 
Barney  v.  Ke'okuk,  94  U.  S.  324 

46,  48,  105 
Barry,  Gunn  v.,  15  Wall.   610 

146,  153 
Bank  Tax  Cases,  The,  2  Wall. 

200  26 

Baker  v.  Boulton,  1  Camp.  493  60 
Batty,  McNulty  v.,  10  How.  72  209 
Bank  of  U.  S.  v.  Halstead,  10 

Wheat.  51  231 

Bath  County  v.  Amy,  13  Wall. 

244  233 

Beer  Co.  v.  Mass.,  97  U.  S.  25 

67,  81,  267,  269 
Beers  v.  Arkansas,  20  How.  527 

180,  181 
Beasley,  Burlington  ».,  94  U.  S. 

310  20 


PAGE 

Bedford,  Parsons  v.,  3  Pet.  433 

200,  230 
Bevans,     United     States    v.,     3 

Wheat.  337  50,  200 

Berry,  Williamson  v.,  8  How.  495  245 
Beebe,  Doe  v.,  13  How.  i5  255 

Benedicts.  Williams,  8  How.  107 

234,  238 

Betsy,  Sloop,  Glass  v.,  3  Dall  7  245 
Belfast,  The,  7  Wall.  624 

47,  59,  197,  236 

Bigler  v.  Waller,  14  Wall.  297  13 
Binghamton  Bridge,  The,  3  WTall. 

51  171,177 

Billings,   Providence  Bank  v.,  4 

Pet.  514  23,  33,  176 

Bischoff   v.  Wethered,   9    Wall. 

812  245 

Bingham  v.  Cabot,  3  Dall.  382  199 
Biddle,  Green  v.,  8  Wheat  1 

149,  166,  172 

Blackbird  Creek  Marsh  Co.,  Will- 
son  v.,  2  Pet.  250      93,98,111 
Blair  v.  Cuniing  County,  111  U. 

S.  363  20 

Blake,Loughborough  v.,5  Wheat. 

317  11,  20 

W.  &  St.  P.  R.  K.  ».,  94  U. 

S.  180  178 

Blount  v.  Windley,  95  U.  S.  173 

151,  154,  158 

Blyew  v.  U.  S.,  13  Wall.  581  196 
Board  of  Liquidation,  Guarantee 

Co.  u,  1.5  U.  S.  622  151 

Board  of  Public   Works  v.  Col- 
lege, 17  Wall.  521        244,  245 
Borden,  Luther  v.,  7  How.  1  211,  212 
Boswell  v.  Otis,  9  How.  336    239,  245 
Bollman  and  Swartwout,£"xpa?*te, 

4  Cr.  75  228 

Borer  v.  Chapman,  119  U.  S.  587  231 
Bonaparte  v.  Tax  Court,  104  U. 

S.  592  18,  24 

Bors  v.  Preston,  111  U.  S.  252  205 
Booth,  Ableman  v.,  21  How.  506 

11,  237 

Boulton,  Baker  v.,  I  Camp.  493  60 
Bond,  Nugent  0.,  3  How.  426  235 
Boyd  v.  Alabama,  94  U.  S.  645 

178,  269 

Boyer  v.  Boyer,  113  U.  S  689  31 
Boom  Co.  v.  Patterson,  98  U.  S. 

403  197 

Boylev.Zacharie,6  Pet.  635  154,  156 

Boyce  v.  Tabb,  18  WTall.  546          !  64 

Boyd,  Ex  parte,  105  U.  S.  647        197 

v.  United  States,  116  U.  S. 

616  226 

Bridge  Co.  v.  United  States,  105 

U.  S.  470  99 


TABLE   OF    CASES    CITED. 


xin 


PACK 

Branch,  Tomlinson  v.,  15  Wall. 

460  34,  171 

Briscoe  r.    Bank    of  Kentucky, 

11  Pet.  257       2,  188,  215,  223 
Brown  v.  Houston,  114  U.  S.  622 

35,  74,  85 
v.  Maryland,  12  Wheat.  419 

25,  40,  82,  216,  269 
Brant,  Landes  v.,  10  How.  348  244 
Brown,  Parkersburg  v.,  106  U.  S. 

487  20 

v.  Huger,  21  How.  305  224 

Broadnax,  Suydam  r.,  14  Pet.  67 

154,  156.  238 

Brown,  Mills  v.,  16  Pet.  525  199 

Bruffy,  Williams  v.,  96  U.  S.  176  189 
Breithaupt  v.  Bank,  1  Pet.  238  199 
Brown  v.  Keene,  8  Pet,  115  199 

Bronson  v.  Kenzie,  1  How.  311  153 
Brad  well  v.  The  State,  16  Wall 

130  257,  265 

Bridge    Case,    The     Albany,    2 

Wall.  403  97 

Bridge  Proprietors  v.   Hoboken 

Co.,  1  Wall.  116    149,  171,172 
Bridges,    The  Passaic,    3  Wall. 

(App.)  782  97 

Bronson  v.  Kimpton,  8  Wall.  44      12 
v.  Rodes,  7  Wall.  229  12 

Bradley  v.  The  People,  4  Wall. 

459  30 

Britton,  Evansville  v.t  105  U.  S. 

322  32 

Brewster,  Chittenden  v.,  2  Wall. 

191  f33 

Bull,  Fretz  v.,  12  How.  466  197 

Buckner  v.  Fin  ley,  2  Pet.  586  2 

Butler  v.  Penna.,  10  How.  402 

154,  179 
Bull,  Calder  v.,  3  Dall.  386 

182, 183,  184 

Buck  v.  Coldbath,  3  Wall.  334  238 
Burgess,  Turpin  v.,  117  U.  S.  504  82 
Burlington,  Rogers  ?'.,  3  Wall. 

654  20 

Burnside,  Barren  v.,  121  U.  S.  186  262 
Burton,  Koskonong  v.,  104  U.  S. 

668  150,  153 

Burgess,  Pace  v.,  92  U.  S.  372  81 
Bush  v.  Kentucky,  107  U.  S.  110 

200,  241,242 

Bugbee,  Howard  v.,  24  How.  461  153 
Butchers'  Union  v.  C.  C.  Co.,  Ill 

U.  S.  760  178, 269 

Burlington  v.  Beasley,   94  U.  S. 

310  20 

Buckley,  Withers  v.,  20  How.  84 

226,  254 

Butter  v.  Horwitz,  7  Wall.  258  12 
Bucher,  Higgins  v.,  Yelv.  89  60 


PAGE 

Bvrne  v.  Missouri,  8  Pet.  40  Ib7 

B:  &  O.  R.  R.,  U.  S.  v.,  17  Wall. 

322  23 

v.  Maryland,  21  Wall.  456 

19,36.  124 
-•         173 

Marshall  v.,  16  How.  314        259 
v.  Koontz,  104  U.  S.  5  261 

B.  &  S.  R.  R.  v.  Nesbit,  10  How. 

395  182,  183 

Carpenter  v.    Pennsylvania,    17 

How.  456  *  23,  34,  182,  183 
Caldwell  v.  Carrington,  9  Pet.  86  244 
Caperton  v.  Ballard,  14  Wall.  238  243 
Calder  v.  Bull,  3  Dall.  386 

182,183,184 
California,  Hurtado  v.,  110  U.  S. 

517  241 

Cannon  v.  N.  O.,  20  Wall.  577 

25,67,  121 
Carskadon,   Pierce  v.,   16  Wall. 

234  153,185,186 

Carson,  Armstrong  v.,  2  Dall.oG.'*  244 
Card  well  r.  A.  Bridge  Co.,  113  U. 

S.  205  98 

Case  of  the  State  tax  on  foreign 

held  bonds,  15  Wall.  300 

23,  24,  154 
Case  of  the  State  freight  tax,  15 

Wall.  232  18,36,125,135 
Campbell  v.  Holt,  115  U.  S.,  620  241 
Carrington,  Caldwell  v.,  9  Pet.  86  244 
Cabot,  Bingham  v.,  3  Dall.  382  199 
Catlettsburg,  Packet  Co.  v.,  105 

U.  S.  559  19,  106 

Capron  v.  Van  Noorden,  2  Cr.  126  199 
Caleb,  Hawthorne  v.,  2  Wall.  10  153 
Carey,  Ottawa  v.,  108  U.  S.  110  20 
Carneal  v.  Banks,  10  Wheat.  181  275 
California,  Almyv.,  24  How.  169 

36,  41,  72,  84 
Campbell,  Robinson  v.,  3  Wheat. 

212  200 

Carryl,  Taylor  v.,  20  How.  583  238 
Card,  Maguire  v.,  21  How.  248 

47,  197 

Case,  Perriman's,  103  U.  S.  714  149 
Carroll  v.  Saflbrd,  3  How.  441  27 
Carpenter,  Haines  r.,  91  U.  S.  254  233 
C.,  B.  &  O.  R.  R.  v.  Iowa,  94  U.  S. 

155  126,  178,  268,  269 

C.  C.  Co.,  Butchers' Union  v.,  Ill 

U.  S.  760  178,  269 

Perrine  v.,  9  How.  192  177 

C.  D.  Co.  v.   Shepherd,  20  How. 

232  259 

Cease,  Robertson  v.,  97  U.  S.  646   199 
C.  Gas  Co.,  Louisiana  Gas  Co.  t>., 
115  U.S.  683  172 


XIV 


TABLE    OF    CASES    CITED. 


PAGE 

Chase.  Steamboat  Co.v.,  16  Wall. 

'  522  60 

Chapman,  Borer  a.,  119  U.  S.  587  231 
Charleston,  Murray  v.,  96  U.  S. 

432  34,  172 

Weston  v.,  2  Pet.  449,  26 

Church  v.  Kelsey,  121  U.  S.  282 

179,  241 
Chemnng  Canal  Bankv.  Lowery, 

93  U.  S.  72  258 

Chicago,  Escanaba  Co.  v.,  107  U. 

S.  678,  98,  268 

Chisholm  v.  Georgia.  2  Dall.  419 

199,  217 
Chicago  v.  Sheldon,  9  Wail.  50 

33, 147,  167 
Ducats,  10  Wall.  410 

40,  260,  261,  262 
Chy  Lung  v.  Freeman,  92  U.  S. 

275  36,  71 

Cherokee  Nation  v.  Georgia,  5 

Pet.  1  143,  198,  212 

Chambers,  Kennett  v.,  14  How.  38  213 
Christ  Church  v.  Philadelphia, 

24  How.  300  168 

Christmas  v.  Russell,  5  Wall.  290  244 
Chicago  Life  Ins.  Co.  v.  Needles, 

113U.  S.  574  177 

Church  w.  Hubbart,  2  Cr.  187  212 
Chirac  v.  Chirac,  2  Wheat.  259 

111,  251,  275 
Cherokee  Tobacco,  The,  11  Wall. 

616  274 

Charles  River  Bridge  v.  Warren 

Bridge,  11  Pet.  420  177 

Cheever  v.  Wilson,  9  Wall.  108  244 
China,  The,  7  Wall.  53  115,  1 16 

Challen,  Holland  v.,  110  U.  S.  15  200 
Cliittenden  v.  Brewster,  2  Wall. 

191  233 

City,  The,  v.  Lawson,  9  Wall.  477  147 
Civil  Rights  Cases,  109  U.  S.  3  266 
Clarke,  Ex  parte,  100  U.  S.  399  254 
Clark,  Bates  v.,  95  U.  S.  204  224 

Clark  v.  Barnard,  108  U.  S.436 

219,  225 

Clark,  Mitchell  v.,  110  U.  S.  333  232 
damn  v.  Houseman,  93  U.  S.  1 30 

235,  236 

Clark,  Keith  ».,  97  U.  S.  454  146, 172 
Clarke,  Waring  v.,  5  How.  441 

46, 197,  200 
Close  v.  Glenwood  Cemetery,  107 

U.S.  400  169 

Clinton   Bridge,  The,  10   Wall. 

454  99 

C.  M.  I.  Co.,  Goodwin  v.,  110  U.  S. 

1  263 

C.  M.  L.  Ins.Co.v.Cushman,  108 

U.  S.  51  150 


Coe  v.  Errol,  116  U.  S.  517 

18,  24,  35,  74,  75,  82 
Cole  v.  La  Grange,  1 13  U.  S.  1  20 
Coilet  v.  Collet,  2  Dall.  294  254 

Columbia  College,  Board,  etc.,#., 

17  Wall.  521  244,  245 

Compagnie  G.  T.,  People  v.,  107 

U.  S.  59  36,  87 

Commissioners,  Newton  v.,  100  U. 

S.  548  179 

Connolly,  Barbier  v.,  113  U.  S.  27  269 
Cook  v.  Penna.,  97  U.  S.  566 

25,  40,  83 
Cooper  Mfg.  Co.  v.  Ferguson,  113 

U.S.  727  215,263 

Cooper  v.  Keynolds,  10  Wall.  30s 

245,  246 
County  of  Rails  v.  Douglass,  105 

U.S.  7  28  147 

County  of  Mobile  v.  Kimball,  102 

U.  S.  691  40,  90 

Coster,  Runyan  v.,  14  Pet.  122  260 
Cohen,  McElmoyle  v.,  13  Pet.  312  244 
Connelly,  RobbV,  111  U.  S.  624 

191,  237 
Coupon  Cases,  Virginia,  114  U. 

S.  270  172,  188,  224,  274 

Cook  v.  Moffat,  5  How.  295  154,  157 
Collector,  Hornthall  v.,  9  Wall. 

560  199 

Commissioners,  The,  The  People 

v.,  2  Bl.  620  26 

People  v.,  104  U.  S.  466      35,  62 

People  v.,  4  Wall  244          29,  30 

Dobbins  v.,  16  Pet.  435  26 

Cooley  v.  The  Board  of  Wardens, 

12  How.  299          111,116,134 
Commissioners  of  Taxes,  etc.,  Peo- 
ple v.,  94  U.  S.  415  32,  33,  155 
of  Tippecanoe  v.  Lucas,  93 

U.  S. 108  241 

Cowles  v.  Mercer  County,  7  Wall. 

118  260 

Commonwealth,  Nat.  Bank  v.,  9 

Wall.  353  28,  30,  33 

Coombs,  US  t>,  12  Pet.  72  46 

Ccmway  v.  Taylor,  1  Bl.  603  101,  268 
Coudry,  Smith  v.,  I  How.  28  243 
Continental  Ins.  Co.,  Doyle  v.,  94 

U.  S.  535  262 

Cox,  St.  Clair  v.,  106  U.  S.  350 

245,  247,  261 
Commonwealth.    Pervear    v.,    5 

Wall.  475  29.  254,  269 

Commissioners,  The,  Mitchell  v., 

91  U.  S.  206  126 

Coite,  Society  for  Savings    v.,  6 

Wall.  594  26 

Commonwealth,  The,  McGuire  v., 

3  Wall.  387  29,  269 


TABLE   OF   CASES   CITED. 


XV 


PAGE 

Corson  v.  Maryland,  120  U.  S. 

502  35,  77,  258 

Commissioners  of  Immigration  v. 

North  German  Lloyd,  92 

U.  S.  269  36,  71 

Cohens  v.  Virginia,  6  Wheat.  264 

193,194,195,196,197,199, 

201,  209,  211,  215,  216,222 
Cooper,  The  Mavor  v.,  6  Wall. 

253  193,  196,  209 

Collidge,  U.  S.  r.,  1  Wheat.  415  200 
Co  veil  v.  Hey  man,  111  U.  S.  176 

237  238 

Coldbath,  Buck  «.,  3  Wall.  334  '  238 
Corfield  v.  Coryell,  4  Wash.  C.  C. 

371  256 

Coryell,  Corfield  v.,  4  Wash.  C.C. 

371  256 

Conner  v.  Elliot,  18  How.  593  257 
Craig  v.  Missouri,  4  Pet.  411  187 
Crandall  v.  State  of  Nevada,  6 

Wall.  35 

28,73,84,87,125,134,  258 
Creighton,  Green  v.,  23  How.  90  238 
Crowninshield,  Sturges  v.,  4 

Wheat.  122       2,4,16,40, 

111,146,149,153  154,155, 

157,  164,  201,  215 
Crowley,  Soon  Hing  v.,  113  U.  S. 

703  269 

Crow  Dog  Ex  parte,109  U.  S,  556  144 
Cruikshank,  U.  S.  v.,  92  U.  S.  542 

201,  251,  253,  254 

Crapo  v.  Allen,  1  Sprague,  184  60 
C.  S.  Ky.  v.  Gebhard,  109  U.  S. 

527  262 

Cummings  v.  Nat.  Bank,  101  U.  S. 

677  32 

Curran  v.  Arkansas,  15  How.  304 

172,  223 
Cunningham  v.  M.  &  B.  K.  K.  109 

U.  S.  446  220 

Cushman,  C.  M.  L.  Ins.  Co.  v., 

108U.  S.  51  150 

Culver,  Queensbury  v.}  19  Wall. 

83  20 

Cuttingr.  Seabnry,  1  Sprague,  522  60 
Cummings  v.  Missouri,  4  WTall. 

277  184,  185, 186 

Cuming  County,  Blair  v.,  Ill  U. 

S.  363  20 

Curtis,  Ex  parle,  106  U.  S  371  12 
Curtis  v.  Whitney,  13  Wall.  68  150 
C.  &  A.  R.  K.  v.  W.  F.  Co.,  119  U. 

S.  615  212,  213,  243 

C.  &  B.  Co.  v.  N.  O.,  99  U.  S.  97  26 
C.  &  A.  E.  R.  v.  W.  F.  Co.,  108 

U.  S.  18  244 

C.  &  F.  R.  R.  v.  Hecht,  95  U.  S. 

168  149 


PAGE 

C.  &  N.  W.  R.  R.  v.  Fuller,  17 

Wall.  500  126,  268 

v.  Whitton,  13  Wall.  270 

60,  200,  232 
C.  &  N.  W.  Ry.,  Peck  v.,  94  U.  S. 

164  127,  178,  268 

D'Arbel,  Urtetiqui  v.,  9  Pet  692    248 
Darlington,   County   of    Living- 
ston v.,  101  U.  S.  407  20 
Dabney,  Barings  v.,  19  Wall.          172 
Davies's  County,  Aspinwall  v.,  22 

How.  364  154 

Davenport,  Sinnot  v.,  22  How. 

227  53,  68,  122,  270 

Foster  v.,  22  How.  244 

53,  68,  122,  270 
Daniel  Ball,  The,  10  Wall.  557 

46.  52,  75,  197 
Dartmouth  College  Case,  4  Wheat. 

518  154,  173,  174,  178 

D'Arcy  v.  Ketchum,  11  How  165  245 
Dalton,  Bank  of  Alabama  v.}  9 

How.  522  234,  244,  248 

Davidson  v.  N.  O.,  96  U.  S.  97 

226,  240,  2o4 

Davis  v.  Gray,  16  Wall.  203  166,  218 
Daggs,  Ewell  r.,  108  U.  S.  143  150 
Davis,  Tennessee  r.,  100  U.  S. 

257  200,  209 

Darlington  v.  The  Bank  of  Ala- 
bama, 13  How.  12  188 
Davis  v.  Packard,  7  Pet.  276          236 
Day  v.  Gallop,  2  Wall.  97              238 
Day,  The  Collector  v.,  11  Wall. 

113  23 

Darst,  Duncan  v.,  1  How.  301  237 
De  Cuir,  Hall  v.,  95  U.  S.  485 

54,  270 
Delmas  v.  Ins.  Co.,  14  Wall.  661 

148,  149,  152 
Delaware,  Neal  v.,  103  U.  S.  370 

253 
R    R.  Tax,  The,    18  Wall. 

206  34.  35,  133,  177 

De  Treville  v.  Smalls,  98  U.  S.  517  22 
Deveaux,  The  Bank  v.,  5  Cr.  61  259 
De  Young,  League  v.t  11  How. 

185  146,  150 

Dea  v.  Jersey  Co.,  15  How.  426  47 
De  Bolt,  Ohio  L.,  I.  &  T  Co.  r., 

16  How.  416         147,149,177 
Dennick  v.  R.  R.  Co.,  103  U.  S. 

11  197 

Demire,  Harris  v.,  3  Pet,  292  226 
Dewitt,  U.  S.  v.,  9  Wall.  41  200,  267 
Dial  v.  Reynolds,  96  U.  S.  340  233 
Dietzsel  v.  Huidekoper,  103  U. 

S.  494  233 

Dillin,  Hamilton  v.,  21  Wall.  73    11 


XVI 


TABLE    OF   CASES    CITED. 


PAGE 

Diggs  v.  Walcot,  4  Cr.  179  233 

Donoghue,  Hanley  t>.,  116  U.  S.  1 

213,  245 

Doe  v.  Beebe,  13  How.  25  255 

Dorrance,  Van  Home  v.,  2  Dall. 

304  193 

Downham  v.  Alexandria  Council, 

10  Wall.  173  35,  81,  258 

Dodge  v.  Woolsey,  18  How.  331  193 
Dobbins  v.  The  Commissioners, 

16  Pet.  435  26 

Dooley  v.  Smith,  18  Wall.  604    13 
Douglass  v.  County  of  Pike,  101 

U.S.  677    '  147 

County  of  Kail  v..  105  U.  S. 

728  147 

Dowley,  Waite  v.,  94  U.  S.  527        33 
Doyle  v.  Continental  Ins.  Co.,  94 

U.  S.  535  262 

Dred  Scott  v.  Sandford,  19  How. 

393  199,  251 

Drehman  v.  Stifle,  8  Wall.  595      151 

Drew,  Paut  v.,  10  How.  218  172 

Triggv.,  10  How.  224  174 

Drogan,  Hobart  «.,  10  Pet.  108 

111,  116,  197,  232 
Djncan,  Witherspoon  v.,  4  Wall. 

210  23 

v.  Darst,  1  How.  301  237 

Ducat  v.  Chicago,  10  Wall.  410 

40,  260, 261,  262 
Dudley's  Lessee,  Bank  v.,  2  Pet. 

492  193 

Dunn,  Anderson  v.,  6  Wheat.  204     11 
Duryee,  Mills  v.,  7  Cr.  481  244 

Dulutli,  Wisconsin  v.,  96  U.  S. 

379  89 

Dupasseur  v.  Bochereau,  21  Wall. 

130  249 

Durant,   The    Supervisors  v.,    9 

Wall.  415  233 

Dynes  v.  Hoover,  20  How.  65        213 
D.  &  B.  C.  Co.,  Bundle  v.,  14 

How.  30  47 

EastSaginaw,  Salt  Co  v.,  13  Wall. 

373  168 

East  Hartford  v.  Hartford  Bridge 

Co.,  10  How.  511  173 

Earle,  Bank  of   Augusta  v.,   13 

Pet.  519  40,  260 

Easton,  Lehigh  Water  Co.  v.,  121 

U.S.  88  147,148 

Eagle,  The,  8  Wall.  15  197 

East   St.  Louis,  Wiggins  Ferry 

Co.  v.,  107  U.  S.  365 

34,  35,  41,  43,  66, 102,  170 
Edwards  v.  Kearzey,  96  U.  S.  595  146 
v.  Elliott,  21  Wall.  532 

59,  200,  230,  233,  236,  254 


Edwards,  Hughes  v.,  9  Wheat,  496  275 
Effinger  v.  Kenney,  115  U.  S.  566  152 
Elmendorf  v.  Taylor,  10  Wheat. 

152  243 

Elliott,  Edwards  v.,  21  Wall.  532 

59,  200,  230,  233,  236,  254 

v.  Piersol,  1  Pet,  328  2*5 

Ellis,  Parrish  v.,  16  Pet.  451  200 

Ellerman,  B.  B.  v.t  105  U.  S.  166    173 

Elizabeth   Oil  Cloth   Co.,  Herd- 

ritter  v.,  112  U.  S.  294  238 
Elliott,  Conner  v.,  18  How.  593  257 
Embry  v.  Palmer,  107  U.  S.  3  11,  248 
Ennis  r.  Smith,  14  How.  40  212,  245 
Errol,  Coe  v.,  16  U.  S.  517 

18,  24,  35,  74,  75,  82 
E.By.  v.  Penna.,  2i  Wall.  492 

34,  36,  177 
Erie  Bail  way  Co.  v.  Penna.,  15 

Wall.  282  136 

Erwin  v.  Lowry,  7  How.  181 

234,  238 
Escanaba   Co.  v.  Chicago,  107  U. 

S.  678  98,  268 

Evansville   Bank  v.  Britton,  105 

U.  S. 322  32 

Ewell  v.  Daggs,  108  U.  S.  143  150 
Ewing,  Gastler  v.,  3  How.  767  153 
Express  Co.  v.  Kountze,  8  Wall. 

342  259 

Exchange  Bank,  Knox  v.,  12  Wall. 

379  148 

Hill  v.,  108  U.  S.  319  32 

Ex  parte  Garland,  4  Wall.  333 

184, 186 

Pennsylvania,  107  U.  S.  174    116 
Madrazzo,  7  Pet.  627  220 

Bollman    &    Swartwout,    4 

Cr.  75  200,  228 

Boyd,  105  U.  S.  647  197 

Curtis,  106  U.  S.  371  12 

Clark,  100  U.  S.  399  254 

Fonda,  117  U  S.  516  210 

Jackson,  96  U.  S.  727  11 

Lange,  18  Wall.  163      228,  229 
Boy  all,  117  U.  S.  241  210 

Wall,  107  U.  S.  265  226 

Wilson,  11 4  U.  S.  417  226 

Yarborough,  110  U.  S.  651 

252,  254 

Bain,  121  U.  S.  1  226 

Crow  Dog,  109  U.  S.  556          144 
Hagar,  104  U.  S.  520  116 

Beggel,  114  U.  S.  642      190,191 
Siebold,  100  U.  S.  371  254 

Milligan. 4  Wall.  2    213,  225, 228 
Mason,  105  U.  S.  696  213 

Virginia,  100  U.  S.  339 

242.  246,  253 
Christie,  3  How.  318  235 


TABLE   OF    CASES   CITED. 


XV11 


Ex  parte  McNiel,  13  Wall.  236 

115,  116 

Gordon,  104  U.  8.  515        60,  200 
Ferry  Co.,  104  U.  S.  519     60,  200 

Eyster  v.  Gatf;  91  U.  S.  521  235 

Fanning  v.  Gregoire,    16   How. 

524  101,177,268 

Fargo  v.  Michigan,  121  U.  S.  230 

36,  84,  132,  137 
Falconer,  R.  R.  Co.  ».,  103  U.  S. 

821  159 

Farrington  v.  Tennessee,  95  U.  S. 

679  167 

Fenno,  Veazie   Bank   v.,  8  Wall. 

533  10,  22,  23 

Ferguson,   Cooper    Mfg.   Co.   v., 

11 3  U.  S.  727  215,263 

Tucker  v.,  22  Wall.  527 

27,  33,  34,  170,  177 

Ferrera,  U.  S.  v.,  13  How.  40  209 
Felton,  Tealr..  12  How.  284  235 

Ferguson  r.  Harwood,  7  Cr.  408  243 
Fertilizing  Co.  v.  Hyde  Park,  97 

U.  S  659  178,  269 

Feusier,  Lamm.  >n  v.,  1 1 1  U.  S.  17  239 
Finley,  Buckner  v ,  2  Pet.  586  2 

Fisher,  U.S.  t>,  2  Cr.  358  10 

Fitzhugh,  Genessee  Chief  v.,  12 

How.  443  46  47,  197 

Fisk  V.Jefferson  Police  Jury,  116 

U.S.  131        146,154,159,179 
First  Municipality,  Permoll  v.,  3 

How.  589  255 

F.  L.  K.  K.  v,  Lowe,   114  U.  S. 

525  27 

Fletcher  v.  Peck,  6  Cr.  87 

153,  164,182,  183,  274 
Fleeger,  Pooler,  11  Pet  185  189 
Fleming,  McLean  v.,  96  U.  S. 

248  61 

Florida  v.  Georgia,  17  How.  478 

189,  198 
F.  L.  &  T.  Co.,  Stone  v.,  116  U. 

S.307  128,178 

Forbes  v.  Gracey,  94  U.  S.  762  28 
Foster  v.  Neilson,  2  Pet,  253  274 
Fonda,  Ex  parte,  117  U.  S.  516  210 
Foreign  held  bonds,  State  tax 

on,  15  Wall.  300       23,24,154 
Ford  v.  Snrget,  97  U.  S.  594     147,  189 
Foster  v.  Kansas,  112  U.  S.  201      267 
v.  Davenport,  22  How.  244 

53,  68,  122,  270 
v.   Master  and  Wardens  of 

the  Port  of  New  Orleans, 

94  U.  S.  246  120 

Fouvergne  v.  New    Orleans,   18 

How.  470  197 

Fowler  v.  Lindsay,  3  Dall.  411       222 


Fox  v.  Ohio,  5  How.  432  235,  254 
U.  S.  vn  95  U.  S.  670  185,  200,  201 
U.  S.t>.,  94  U.S.  ."15  255 

Frazer,  The  John,  The  Jas. Gray 

v.,  21  How.  184  121,268 

Freeborn  v.  Smiili,  2  Wall.  lt>0  183 
French,  Ins.  Co.  v.,  18  How.  404 

245,246,261 
Freeman,  Chy  Lung  v.,  92  U.  S. 

275  36,   71 

Freight   Co.,  Greenwood  v.,  105 

U.  S.  13  169 

Freeman  v.  Alderson,  119  U.  S. 

185  246 

Frederickson    v.    Louisiana,    23 

How.  445  275 

Franks,  Baldwin  v.,  120  U.S. 678 

274,  275 

Fretz  v.  Bull,  12  How.  466  197 

Fremont  v.  U.  S.,  17  How.  542  213 
French  v.  Hay,  22  Wall.  250  233 

Freeman  v.  Howe,  24  How.  450 

237,  238 

Furman  v.  Nichol,  8  Wall.  44  172 
Fuentes,  Gaines  v.,  92  U.  S.  18  197 
Puller,  C.  &N.  W.  R.  R.  v.,  17 

Wall.  560  126,  268 

F.  and  M.  Nat'l  Bank  v.  Smith, 

6  Wheat.  131  154,  156,  157 

Garland,  Ex  parte,  4  Wall.  333 

184,186 
Gage,  Machine  Co.  v.,  100  U.  S. 

676  35,  78,  258 

Gaines.  R.  R.  Cos.  t>.,  97  U.  S. 

697  33,34,155,168,171 

Gantly  v.  Ewing,  3  How.  107  153 
Garrett,  Merriwether  v  ,  102  U.  S. 

472  19,  154,  159 

Gaines  v.  Fuentes,  92  U.  S.  18  197 
Gaff,  Eyster  v.,  91  U.  S.  521  235 

Galceran,  Leon  v.,  11  Wall.  185  236 
Gallup,  Day  v.,  2  Wall.  97  238 

Gebhard,  C.  S.  Ry.  v.,  109  U.  S. 

527  263 

Georgia,  A  &  G.  R.  R.  v.,  98  U. 

S.  359  169 

Cherokee  Nation  «.,  5  Pet.  1 

143, 198,  212 
Governor  of,  v.  Madrazzo,   1 

Pet.  110  219,220 

Chisholm  v.,  2  Dall.  419  199,  217 
t.  Stanton,  6  Wall.  71  212 

South  Carolina  v.,  93  U.  S.  4 

87,  122 
Worcester  v.,  6  Pet.  515 

143,  144,  209 

Alabama  v.,  23  How.  505  189, 1 98 
Florida  v.,  17  How.  478  189,  198 
v.  Brailsford,  2  Dall.  402  219 


XV  111 


TABLE    OF    CASES    CITED. 


Gelston,  Hoyt    v.t  3  Wheat.  324 

201,  212,  237 
Genesee  Chief  v.  Fitzhugh,   12 

How.  443  46,  47,  197 

G.   Ferry   Co.  v.   Pennsylvania, 
114  U.S.  196 

36,  41,  65,  100,  103 
Gilman  v.  Shebovgan,  2  Bl.  510 

19,159 

v.  Philada.,  3  Wall.  713  4  95, 97, 
134,  201 
Gibbons  v.  Ogden,  9  Wheat.  1 

8,16,34,40,41,  42,44,  50,  86, 
100,  108,  117,  123,  215,  216 
Gilfillan  v.  Union  Canal  Co.,  109 

U.  S.  401  150 

Glass  v.  Sloop  Betsy,  3  Dall  7  245 
Glen  wood  Cemetery,  Close  v.,  107 

U.  S.  466  169 

Glover,  Huse  v.,  119  U.  S.  543 

19,  91,  98 
G.  N.  &  P.  S.  S.  Co.,  Lord  v.,  102 

U.  S.  541  57 

Goodwin  v.  C.  M.  I  Co.,  110  U. 

S.  1  263 

Gordon  v.  U.  S.,  2  Wall.  561  209 
Goodtitle  v.  Kibbie,  9  How.  471  255 
Godfrey  v.  Terry,  97  U.  S.  171  199 
Gray,  The  Jas.,  v.  The  John  Fra- 

'  ser,  21  How.  184  121,  268 

Grace  v.  American  Ins.  Co.,  109 

U.S.  278  199 

«i«*       aray>  Davis  v  • 16  Wal1-  2°3  166> 218 

Grisar  v.  McDowell,  6  Wall.  363  224 
Greenhow,  Antoni  v.,  107  U.  S. 

769  152 

Green  man,  Juilliard  v.,  110  U.  S. 

421  3,  12,  13,  215 

Greenhow,  Hartman  v-,  102  U.  S. 

672  172 

Greenwood  v.  Freight  Co.,  105  U. 

S.  13  169 

Greneaux,  Prevost  v.,  19  How.  1  275 
Gregoire,  Funning  v.,  16  How. 

524  101,  177,  268 

Grima,  Mager  v.,  8  How.  490  18,  24 
Griffith,  Stevens  v.,  Ill  U.  S.  48  147 
Gross  v.  U.  S.  Mtge.  Co.,  108  U. 

S.  477  149,  265 

Groves  v.  Slaughter,  15  Pet.  449 

83,  252, 255 
Greenhow,   Moore  v.,  114  U.  S. 

338  152 

Graham,  Strader  v.,  10  How.  93  252 
Griswold,  Hepburn  v.,  8  Wall. 

603  13 

Gracey,  Forbes  v.,  94  U.  S.  762  28 
Green  v.  Biddle,  18  Wheat.  1 

149,  166,  172 
v.  Creighton,  23  How.  90        238 


Guarantee  Co.  v.  Board  of  Liqui- 
dation, 105  U.  S.  622  151 
Gut  v.  The  State,  9  Wall  35          185 
Guy  v.  Baltimore,  100  U.  S.  434 

35,  77,  106,  2o4 

Gunn  v.  Barry,  15  Wall.  610  146, 153 
G.  &  C.  Co.,  Knowles  «.,  19 

Wall.  58  247 

Hagar,  Ex  parte,  104  U.  S.  520  116 
Hager,  Brown  v.,  21  How.  305  224 
Hagar  v.  Reclamation  District, 

111  U.  S.  701  12,  240 

Harris  v.  Dennie,  3  Pet  292  236 

Harwood,  Ferguson  v.,  7  Cr.  408  243 
Hagood  v.  Southern,  117  U.  S.  52  219 
Halstead,  Bank  of  U.  S.  v ,  10 

Wheat.  51  231 

Haile,  Mason  v.,  12  Wheat.  327     149 
Hall  v.  Wisconsin,  103  U.  S.  5       172 
Hamilton  v.  Dillin,  21  Wall.  73       11 
U.  S.  v.,  3  Dall.  17  28 

Hamersley,  N.  H.  &  N.  Co.  v.,  104 

U.  S.  1  178,  269 

Hauenstein  v.  Lynham,  100  U.  S. 

483  275 

Hanley  v.  Donoghue,  116  U.  S.  1 

213,  245 
Hampton  v.  McConnell,  3  Wheat. 

234  244 

Happersett,  Minor  v.,  21  Wall. 

163  252,  265 

Harmony,  Mitchell  v.,  13  How. 

114  224 

Harris  v.  Hard  man,  14  How.  334 

239,  245 
Hardman,  Harris  v.,  14  How.  334 

239,  245 
Harmoning,  Arrowsmith  v.,  118 

U.  S.  194  242 

Hart,  White  v.,  13  Wall.  646 

146,  152,  264 

Hall  v.  De  Cuir,  95  U.  S.  485  54,  270 
Hale,  Baldwin  v.,  I  Wall.  223 

154,  157,  158 

Haas,  U.  S.  v.,  3  Wall.  407  144 

Hagan,  Pollard  v.,  3  How.  212 

2,  48,  255 

v.  Lucas,  10  Pet.  400  233,  238 
Hackett  v.  Ottawa,  99  U.  S.  86  20 
Hamilton,  Bank  of,  v.  Dudley's 

Lessee,  2  Pet.  492  193 

Haines  v.  Carpenter,  91  U.  S. 

254  233 

Hartford  Bridge  Co.,  East  Hart- 
ford v.,  10  How.  511  172 
Harris,  U.  S.  v.,  106  U.  S.  629 

2.  264,  266,  274 
Hamilton  v.  V.  S.  &  P.  K.  K.,  119 

U.  S.  280  98 


TABLE    OF    CASES    CITED. 


XIX 


PAGE 

Ilnyburn's  Case,  2  Dull-  409  209 

Hawthorne  v.  i  tuef,  '1  Wall.  10  153 
Harbor  Comm'rs,  Weber  v.,  18 

Wall.  57  47,48,255 

Havwnrd,  McL'racken  v.t  2  How. 

008  153 

Haver  ».  Yaker,  9  Wall.  32  275 

Hartman   r.   Gieenhow,   102  U. 

8.  672  172 

Havemeyer  v.  Iowa  Co.,  3  Wall. 

294  147 

Hamilton  Co.  r.  Massachusetts,  6 

Wall.  6o2  26 

Hays  v.  P.  M  S.  S.  Co.,  17  How. 

596  36,  64 

Hay,  French  r.,  22  Wall   250         233 
Head  r.  A.  Mfg.  Co.,  1 13  U.  S.  9    -40 
v.  The   Lniversity,  19  Wall. 

526  179 

Hccht,  U.  R.  v.,  95  U  S.  168  149 
Henderson  r.  The  Mayor  of  N. 

Y.,  92  U.S.  259         36,69,70 
Hepburn  v.  School  Directors,  23 

Wall.  4bO  31,  32 

v.  Griswold,  8  Wall.  603  13 

Herdritter  v.  Elizabeth  Oilcloth 

Co.,  112  U.  S.  294  238 

Heyman,  Covell  t\,  111  U.  S.  176 

237,  238 
Iliuson  v.  Lot',  8  Wall.  148 

35,  78,  258 
Hickey's    Lessee    v.    Stewart,   3 

'How.  750  245 

Hill  v    Exchange  Bank,  105  U. 

S.  319  32 

Hine,   The,   v.  Trevor,  4  Wall. 

556  59,  197,  235 

Higgins  v.  Bucher,  Yelv.  89  60 

Himely,  Eose  r.,  4  Cr.  272  212,  245 
Howard,  Peyronx  r.,  7  Pet.  324  46 
Homeland,  Wurts  v.,  114  U.  S.  606  240 
Holliday.  U.  S.  ?-.,  3  Wall.  407  144 
Howard  v.  Busjbee,  24  How.  461  -53 
Hnlkee,  Phelps  v.,  1  Dall.  261  246 
Holyoke  Co.  v.  Lyman,  15  Wall. 

f  500  170 

Hollingsworlh  V.Virginia,  3  Dall. 

378  217 

Holmes,  Barrett  v.  102  U.  S.  651  241 
Hornthall  v.  Collector,  9  Wall. 

560  199 

Holt,  Campbell  r.,  115  U.  S.  620  241 
Home  Insurance  Co.  v.  Morse,  20 

Wai  I.  445  262 

Hopkins,  Wo   Lee  v.,  118  U.   P. 

356  265,  269 

Yick  Wo».,  118U.  S.  350 

265,  269 

Houpt  v.  Utah,  110  U.  vS.  574  185 
Howard,  Bacon  v.,  20  How.  22  244 


Hoyt  v.  Gelston,  3  Wheat.  324 

201,  2i  2,  237 
Houston,  Brown  v.,  114  U.  S.  622 

35,  74,  85 
Hotchkiss,  Kirtland  v.,  100  U.  S. 

491  18  23,24 

Plouston  v.  Moore,  5  Wheat.  49 

4,  111,201,213,235 
Howe,  Freeman  v.,  24  How.  250 

237,  238 

Holmes,  Barrett  r.,  102  U.  S.  651  150 
Home  Ins.  Co.  v.  Augusta,  93  U. 

S.  1 1 6  34, 177 

Holmes  r.Jennison,  14  Pet.  540 

188,  252,  255 

Hoover  v.  Dynes,  20  How.  65  213 
Horwitz,  Butler  r.,  7  Wall.  258  12 
Hoboken  Co.,  Bridge  Proprietors 

v.,  1  Wall.  116       149,  171,  172 
Hobart  v.  Drogan,  10  Pet.  108 

111,  116,179,232 
Houseman,  Clatiin  v.,  93  U.  S.  130 

235,  236 

Hook,  Payne  r.,  7  Wall.  425  197 

Holland  r.  Challen,  HOT.  S.  15  200 
Hoboken  L.  &  I.  Co.,  Murray's 

Lessee  v.t    18  How.  272 

226,  229 

PToyt  v.  Sprague,  103  U.  S.  613  255 
Hubl.art,  Church  v.,  2  Cr.  187  12 

Humes,  N.  P.   Ky.  v.,   115  U.  S. 

512  268 

Hughes  r.  Edwards,  9  Wheat.  489  275 
Humphrey  v.  Pegues,  16  Wall. 

244  167,  168,  171 

Huidekoper,   Dietzsch  v.,  103  U. 

S.  494  233 

Hunter's    Lessee,    Martin    v.,    1 

Wheat.  304  1,2,6,8,11, 

193-5,  202,  204,  206,  215,  232 
Huse  v.  Glover,  119  U.S.  543 

19,  91,  98 
Huddleson,  Achison  v.,   12  How. 

293  123 

Hudson,  U.  S.  v.,  7  Cr  32  200,  205 
Hunt  v.  Pallas,  4  How.  589  209 

Hull.  Owings  *;.,  9  Pet.  6<'7  213,  243 
Hudson,  Lenox  r.,  109  U  S.  468  233 
Hurtado  v.  California,  110  U.  S. 

517  241 

Husen,  R.  R.  r.,  95  U.  S.  465 

119,  127,270 
Hyde  Park,  Fertilizer  Co.  v  ,  97 

U.  S.  659  178,  269 

Hyde,  Crippendorf  v.,   110  U.  S. 

276  239 

Hylton  v.  U.  S.,  3  Dall   171  22 

Hyde  v.  Stone,  20  How.  1 70  1 97,  238 
H.  &  St.  J.  R.  R.  v.  Husen,  95  U. 

S.  465  119,  127,  270 


TABLE    OF    CASES    CITED. 


PAGE 

I.  C.  R.  R ,   Stone  v.,   116  U.  S. 

347  128,178 

Illinois,  Moore  r.,  14  How.  13  235 
Munn  v.,  9±  U.  S.  1J3  126,  268 
Fresher  v.,  11GU.  S.  252 

254,  269 
Haggles  v.,   108    U.   S.  526 

178,  269 
W.  St.  L.  &  P.  By.  v.,  118 

U.  S.  557      "128,  268,  271 
Spies  v.,  123  U.  S.  131 

209,  240,  254 

Indseth,  Pierce  v.,  106  U.  S.  546  212 
Liitnun  S.  S.  Co.  v.  Tinker,  94  U. 

S.  23  25,  67 

Insurance    Co.,    Del  mas    v.,    14. 

Wall.  661  148,  149,  152 

Iowa,    Barlemeyer  v ,    18    Wall. 

129  267 

C.,  B.  &  Q.  R.  R.  v.,  94  U.  S. 

155  123,178,263,269 

County,    Havemever    v.,     3 

Wall.  294  47 

Missouri  v.,  7  How.  660   189,  198 
I.  R.  C.  Co.,  Ochiltree  v.,  21  Wall. 

249  151 

Jackson,  EJC  pir/e,  96  U.  S.  727        11 

Wilcox  v.,  13  Pet.  498      224,  245 

v.  Lamnhire,  3  Pet.  280  150 

R.  R.  ».,  7  Wall.  262  24 

J.  B.  Bank  v.  Skelly,  1  Bl.  436 

33,  149,  167,  177 
Jennison,  Holmes  v.,  14  Pet.  450 

189,  252,  255 
Jefferson  Police  Jury,  Fisk  v.,  1 16 

U.  S.  131        146,  154,  159,  179 
Jefferson,  The  Thomas,  10  Wheat. 

423  46,  47 

Jenners,  Peck  v.,  7  How.  612  234,238 
Jersey  Co.,  Den  v.,  15  How.  426  47 
Jersev  City,  Provident  Instiiu- 

"  tionv.,  113U.  S.  506  240 

Jessup,  Tomlinsonv  ,  15  Wall.  454  169 

Jones  v.  Soulard,  24  How.  41  47 

Scott  v.,  5  How.  343  146 

Johnson,  R.  R.  v.,  15  Wall.  195        13 

Mississippi  v.,  4  Wall.  498     212 

Nations  v.,  24  How.  195    210,  246 

Joliffe,  Steamship  Co.  v.,  2  Wall. 

450  115,  116 

Johnston,  Rosenblatt  v.,  104  U.  S. 

482  29 

Jones,  Watson  v.,  13  Wall.  697  233 
Johnson  County,  Riggs  v.,  6  Wall. 

166  233 

Juilliard   v.  Greenman,  110  U.  S. 

421  3,  12,  13 

Jumel,   Louisiana  v.,   107   U.  S. 

711  220 


Justices,  The,  v.  Murray,  9  Wall. 

274  2.J1,  254 

Kansas,  Ames  v.,  Ill  U.  S    449 

196,  205,  209 

Foster  v.,  112  U.S.  201  2(57 

Indians,  The,  5  Wall.  737          27 

Mugler  v.,  J23  U.  S.623          267 

Kearzey,  Edwards  «.,  96  U.S.  595  146 

Keith  v.  Clark,  97  U.  S.  454    146, 172 

Keisey,  Church  v.,  121  U.  S.  282 

179,  241 
Kenney,    Effinger  v.,  115   U.   S. 

566  152 

Kennett,  v.  Chambers,  14   How. 

38  212 

Kelly  v.  Pittsburgh,  104  U.  S.  78 

20,  226,  240,  254 

Keene,  Brown  v.,  8  Pet.  115  '  19  J 
Kentucky  Ry.  Tax  Cases,  115  U. 

S  321  2'0 

Patterson  v.,  97  U.  S.  501         269 
Bush  v.,  107  U.  S.  110 

200  241,  242 
Bank   of,  Briscoe  v.,  11    Pet. 

257  2,  188,  215,  223 

v.  Ohio,  24  How.  66 

190,  191,193,  198,  219 
B  ink  of,  v.  Wisler,  2  Pet.  318  22.J 
Keehler,  U.  S.  v.,  9  Wall.  83         189 
Keokuk,  Barney  v.,  94  U.  S.  324 

46,  48,  105 
Packet  Co.  v.,  95  U.  S.  80 

19,  105.  274 

Ketchum,D'Arcyi'.,ll  How.  165  245 
Kendall,  Postmaster  General,  v. 

Stockton,  12  Pet.  527  212 

Keyes  v.  U.  S.,  109  U.  S.  336  213 
Kearney,  Ex  parte,  7  Wall.  38  228 
Kilbourn  v.  Thompson,  103  U.  S. 

168  11 

King,  W.  &  W.  R.  R,  t>.,  91  U.  S.  3  152 
Kimball,  County  of  Mobile  v.,  102 

U.  S.  691  40,  90 

Kibbie,  Goodtitle  v.,  9  How.  471  255 
Kinzie,  Bronson  v.,  1  How.  311  153 
Kimpton,  Bronson  ».,  8  Wall.  444  12 
Kirtland  v.  Hotchkiss,  100  U.  S. 

491  18,  23,  24 

Knowles  v.  The  G.  &  C.  Co.,  19 

Wall.  58  247 

Knox    v.    Exchange    Bank,    12 

Wall.  379  148 

Knopp,   State  Bank  v.,  16  How. 

369  149 

Koontz,  B.  &  O.  R.  R.  v.,  104  U. 

8.5  261 

Kohl  v.  U.  S.,  91  U.  S.  307  11 

Koshkonong  v.  Burton,  104  U.  S. 

668  150, 153 


TABLE    OF   CASES    CITED. 


XXI 


Kountze,  Express  Co.  v.,  8  Wall. 

342  259 

Kring  v.  Missouri,  107  U.  S.  221  184 
Kiviger,  Randall  v.,  23  Wall.  137  149 
Krippendorf  v.  Hyde,  llU  U.  S. 

2/0  239 

Lafayette  Insurance  Co.v.  French, 

18  How.  404  245,246 

Lange,  Et  purtc,    18    Wall.    163 

228,  229 

Langford  v  U.  S.,  101  U.  S.  34  2 

Landes  v.  Brant,  10  How.  348  244 
Lamphire,  J:;ckson  v  ,  3  Pet.  280  150 
Laird,  Stuart  i1.,  1  Cr.  299  215 

LJI  ( i  range,  Cole  v.,  1 13  U.  S.  1  20 
Lane  County  v.  Oregon,  7  Wall. 

71  12 

Lammon  r.  Fc-usier,  111  U.  S.  17  2^9 
Lawler  v.  Walker,  14  How.  149  199 
L.  C.  &  C.  K.  II.  v.  Letson,  2  How. 

497  223,  259 

League  v.  De Young,  11  How.  185 

146,  150 

Le  Bois,  U.  S  «.,  121  U.  S.  278  144 
Lear,  Armstrong  v.,  8  Pet.  5'J  212 
Leon  v.  Galceran,  11  Wall.  185  235 
Legal  Tender  Ca.es,  12  Wai  1.457 

12,  13,  274 

Lewis,  Siebert  r..  122  U.  S.  284  160 
Lee,  U.  S.  v,  1<>6  U.  S.  196  224 

Le  oux  v.  Hudson,  109  U.  S.  468  233 
Letson,  L.  C.&C.R  K.v.,2  How. 

4»7  223,  259 

Lewis,  Missouri  v.,  101  U.  S.  22  241 
Lehigli  Water  Co.  v.  Easton,  121 

U.  S.  388  147, 148 

License  Cases,  5  How.  504 

108, 109,  267 
License  Tax  Cases,  5  Wall.  462 

34,  177 

Lionberger  r.  House,  9  Wall.  468  30 
Liquidation,  Board  of,  v.  Mc- 

Comb,  92  U.  S.  541      223,  224 
Livingston,  County  of,  v.  Dar- 
lington, 101  U.  S.  407  20 
v.  Story,  9  Pet.  632                   200 
Lindsay,  Fowler  v  ,  3  Hall.  411      222 
L.  Ins.  Co.  v.French,  18  How. 404  261 
Liverpool  Ins  Co.  v.  Mass  ,  10 

Wall.  566  40, 259,  260,  261, 262 
Livingston  v.  M.  Ins.  Co.,  6  Cr. 

274  212 

v.  Moore,  7  Pet.  469  182, 183, 254 
Loan  Association  v.  Topeka,  20 

Wall.  655  20 

Lott,  Hinson  v.,  8  Wall.  148 

35,  78,  258 
Lottawanna,  The,  21  Wall.  558 

59,  200,  233 


Louisiana,  Frederickson  t.,  23 

How.  445  275 

Nathan  v.,  8  How.  73  35,  40,  62 
Low  v.  Austin,  13  Wall.  29  25,  bo 
Lord  v.  S.  S.  Co.,  102  U.  S.  541  57 
Lord,  The  Mayor  ».,  9  Wall.  409  233 
Lowery,  Chemung  Canal  Bank  v., 

93  U.  S.  72  25S 

Louisiana,  Allen  r.,  103  U.  S.  80   274 
Morgan  ??.,  93  U.S.  217 

33,  118,  155  168 

r.  Jumel,  107  U.  S.  711  220 

v.  Mayor  of  New  Orleans 

109  U.  S.285  153,  159,  241 
New  York  r.,  108  U.  S.  76  220 
New  Hampshire  v  ,  108  U. 

S.  76  198,  220 

v.  Pilsbury,  105  U.  S.  278 

154,  158,  160 
v.  New  Orleans,  102  U.  S. 

103  150,  154,  180 

Loughborough  r.  Blake,  5 

Wheat.  31 7  11,20 

Louisiana  Board  of  Healt/i,  Mor- 
gan S.  S.Co.  v.,  1 18  U.  S.  455     1 9 
Lowry,  Erwin  r.,  7  How.  181 

234,  238 
Louisiana  Gas  Co.  v.  C.  Gas  Co., 

,1511.  S.  683  172 

Louisiana  Light  Co.,  New  Orlears 
Gas  Co.  «.,  i  15  U.  S.  650 

146,  172 

Williams  v  ,  103  U.  S.  637  149 
Lowe,  F.  L.  R.  R.  v.,  114  U.  S. 

525  27 

L.  R.  R.,  R.  R.  R.  v.,13  How.  81  177 
Lucas,  Strother  v.,  6  Pet.  763          212 
Commissioners  v.,  93  U.  S. 

108  241 

Hagan  v.,  10  Pet.  400       233,  238 

Lull,  Nash  v.,  102  Mass.  60  236 

Luther  r.  Borden,  7  How.  1    211,  212 

Lynn,  Schiver's  Lessee  v.,  2  How. 

43  245 

Lynham,  Hauenstein  v ,  100  U. 

S.  483  275 

Lyman.  Holyoke  Co.  v,,  15  Wall. 

500    '  170 

L.  &  N.  R.  R.  v.  Palmes,  109  U. 

S.  244  149 

Machine  Co.  v.  Gage,  100  U.  S. 

676  35, 78,  258 

Maokin  v.  U.  S  ,  117  U.  S.  248      2^6 
Madison,  Marbury  v.,  1  Cr.  137 

*2.  193,205,  212,  274 
Magwire,    Col'r.,   Bailey   w.,   22 

Wall.  215  177 

Maguire,  Traskr.,18  Wall.  391 

33,  155, 168 


XX11 


TABLE    OF    CASES    CITED. 


Maguire,  N.  M.  R  K.  v.,  20  Wall. 

46  176 

P.  R.  K.  v.,  20  Wall.  36    33,  1C7 
Madrazzo,    Goveinor,  etc,  v.,   1 

Pet.  110  219,220 

Marshall  v.  B.  &  O.  R.  R.,  10 

How.  314  259 

Maryland,  Ward  v.,  12  Wall.  418 

35,  75  79,  258 

Martin  v.  Mott,  12  Wheat.  19        213 
v.  Hunter's  Lessee,  1  Wheat. 
304         1,2,0.  6,  11,  J93,  195, 
202,204  206,  215,  232 
Marbury  v.  Madison   1  Cr.  137 

2,  193,20o,212,274 
Maryland,  Brown  v.,  12  Wheat. 

419  25.40  82,  216,  269 

McCulloch  v.,  4  Wheat.  316 

1,3.8,9,  10,  14,  18,  29,  217 
Turner  v.,  107  U.  S.  38 

25,  86,  87 

Mason  v.  Haile,  12  Wheat.  327      149 
Massachusetts,  L.  Ins.  Co.  v.   10 

Wall.  560  40,259,  260,261,  262 
Ins.  Co.,  Livingston  v.,  6  Cr. 

274  212 

Madrazzo,  Ex  pnrte,  7  Pet.  627        220 
Maryland,  B.  &  O.  R.  K.  t>.,  21 

Wall.  456  1936,124 

Marigold,  U.  S.  v.y  9  How.  560 

11,  235 

Martin  r.  Waddell,  16  Pet.  367        47 
Matthewson,  Satterlee  v.,  2  Pet. 

380  182,  183 

Mager  r.  Grima,  8  How.  490      18,  24 
Maguire  v.  Card,  21  How.  248 

47,  197 
Mayor,  The,  Waring  v.,  8  Wall. 

110  85 

Massachusetts,  Rhode  Island  v., 

12  Pet.  657  2, 189, 198,  215,  216 
Maxwell  v.  Stewart,  22  Wall.  77 

244,  245,  246 
Maryland,  Smith  t».,  18  How.  71 

47.  48,  254,  255,  268 
Mayor  of  New  Orleans,  Louisiana 

v..  109  U.S.  285  153,  241 

of  New  York,  Miller  v.,  109 

U.  S.  385     '  99 

of  New  York,  Henderson  v., 

92  U.  S.  259  36,  69,  70 

May  hew  v.  Thatcher,  6  Wheat. 

129  245 

Massachusetts,  Beer  Co.  ?-.,  97  U. 

S.  25  178,267,269 

Maryland  v.  B.  &O.  R.  R.,  3  How. 

534  173 

Mayor,   The,    The   Banks  v.,   7 

Wall.  16  26 

v.  Lord,  9  Wall.  409  233 


Massachusetts,  Provident  Institu- 

tion?-., 6  Wall.  611  26 

Hamilton  Co.  v..  6  Wall.  632     26 
Maryland,    Corson    v.,  12<>  U  S. 

502  35,  77,  25  S 

Mayor,  The,  r.  Cooper,    6  Wall. 

253  193,196,209 

Mayburv,  Slocum  v.,  2  Wheat.  9 

201,  236,  238 
Master  and  Wardens  of  the  Port 

of  New  Orleans,  Foster  r., 

94  U.  S.  246.  120 

McBratney,  U.  S.  v.,  104  U.  S.  621  274 
McClurg's  Lessee,  Meigsu.,  9  Cr. 

11  224 

McClure,  O.   &  M    R.  R.  v.,  10 

Wall.  511  146,  148 

McCready  v.  Virginia,  94  IT.  S. 

391  49,  255,  2o7,  258,  268 

McCulloclu;.  Maryland  4  Wheat 

316  1,  H.BJJ,  10,  14,  T8,  29,  217 
McDowell.  Gri^ar  v.,  6  Wall.  363  224 
McElmoylo  r.  Cohen,  13  Pet.  812  244 
McElrath  v.  U.  S.,  102  U.  S.  426 

197,  230 
McConnell,  Hampton  v.,  3  Wheat. 

234  244 

McMillen  v.  Anderson,  95  U.   S. 

37  240 

McComb,    Liquidation   v.,  92  U. 

IS.  541  223,  224 

McShane,  U.  P.  Ry.  v.,  22  Wall. 

444  27 

McCracken  v.  Hay  ward,  2  Row. 

608  153 

McNarnee,  Wilson  v.,  102  U.  S. 

572  115,116 

McNeal,  Ex  parte,  13  Wall.  236 


115,  116,232 
13  Pet 

237,238 


McConnell,  Wallace 

136 
McGuire  v.  The  Commonwealth, 

3  Wai  1.387  29,269 

McLean  v.  Flemming,  96  U.  S. 

248  61 

McClurg  v.  Silliman,  6  Wheat. 

598  236 

McMillan  v.  McNeil,  4  Wheat. 

209  154,155,157 

McNeil,  McMillan  v.,  4  Wheat. 

209  154,  155,  157 

McNnlty  v.  Batty,  10  How.  72  209 
McKim  v.  Voorhees,  7  Cr.  279  237 
Mel  ver,  Smith  v.,  9  Wheat.  532  238 
Meigs  v.  McClurg's  Lessee,  9  Cr. 

11  224 


Wall. 


260 


Mercer  County,  Cowles  v., 

118 
Memphis  Gas  Light  Co  v.  Shelby 

County,  109  U.S.  398     23,33,176 


TABLE    OF    CASES    CITED. 


XX111 


PAGE 

Merriwether  v.  Garrett,  102  U.  S. 

472  11),  154,  159 

Merchants'   Bank,  N.  J.  Naviga- 
tion Co.  V.,  6  How.  3 14        197 
Memphis  v.  U.  S.,  97   U.  S.  293 

154,  158,  160 

U.  S.  v.,  97  U.  S.  284  179 

Mercantile  Bank  i:   New   York, 

121  U.  S.  138  31 

Mercer,  Wutson  y.,  8  Pet.  88  182, 183 
Miller  a.  Muvor  of  New  York,  109 

U.  S/385  99 

Minor    v.    Happersett,   21   Wall. 

103  252,  265 

Michigan,  Fargo  v.,  121  U.  S  23<> 

36,  84,  132,  1:57 

Missouri,  Craig  v  ,  4  Pet.  411          J87 
Cmnmings   v.,   4  Wall.  277 

184,185,  180 

Krins:  v.,  107  U.  S.  221  184 

r.  Lewis,  101  U.S.  22  241 

Wei  ton  ».,  91  U.  S.  275  35,  76,258 

Mitchell  v.  Clark,  1 10  U.  S.  333     23  J 

r.  llann-mv,  13  How.  114        224 

Mills  r.  Durvee,  7  Cr.  481  244 

r.  Brown,  10  Pet.  525  199 

v.  St.  Ciair  Count  v,  8  How. 

5S1  177 

Michigan,  Walling  v.,  116  U.  S. 

446  258 

Middleton  v.  Mullica    Township, 

112  U.  S.  433  20 

Miln,  City   of  New  York  v.,  11 

Pet.  103    54,68,  111,  121,  267 
Michigan,  Walling  v..  116  U.  S. 

440  35, 77 

Mississippi,  Stonea.,  101  U.  S.  814 

178,  269 
Mitchell  v.  The  Commissioners, 

91  U.  S.  206  26 

Missouri,  Byrne  v.,  8  Pet.  40  187 

v.  Iowa  7  How.  660         189,  198 
Mississippi  v.  Johnson,  4  Wall. 

475  212 

Mixter,  Pacific  Nat'l  Bankv.,  124 

U.  S.  721  236 

M.  N.  Bank,  Tuppan  v.,  19  Wall. 

490  32 

Mobile,  Osborn  v ,  16  Wall.  479 

35, 132 
v.  Watson,    116   U.  S.    289 

154, 158,  159 
Moore   v    Greenhow,    114  U.  S. 

338  152 

Mobile   County  v.  Kimball,    102 

U.  S.  691  40,  90 

Moran  v.  New  Orleans,  112U.  S. 

69  36,  66 

Morgan  v.  Parhara,  16  Wall.  471 

36,64 


Morgan  S    S.  Co.?-.  La.  Board  of 

Health,  Ii6  U.  S.  453  19 

Peetev.,  19  Wall.  581 

25,67,  118,121 
v.  Louisiana,  93  U.  fc>.  217 

33,  118   155,  168 

Morse,  Ins.  Co.  r.,  20  Wall.  445  2  12 
Molt,  Martin  v.,  12  Wheat.  19  213 
Moore,  Livingston  v.,  7  Pet.  409 

182,  183,  254 

v.  Illinois,  14  How.  13  235 

Houston  v.,  5  Wheat.  49 

4,111,201,213,235 
Moor,  Veazie  v ,  14  How.  508  55,  92 
Morris,  N.  O.  v.,  105  U.  S.  600  179 
Moffat,  Cook  r.,  5  How.  295  151,157 
Moses  Taylor,  The,  4  Wall.  411 

5J,  197,  201,  203,  204,  235 
Montello,  The,  20  Wall.  430  40,  197 
Mouhrie,  County  of,  v.  R.  T.  C.  S. 

Bank,  92  U.S.  631  154,  159 
M.  R.  Improvement  Co.,  Sands 

v.,  123  U.  S.  288  19  92,  98 
Murnma  v.  Potomac  Co.,  8  Pet. 

281  197 

Munn  v.  Illinois,  94  U.  S.  113 

126,  268 

Murphy  v.  Ramsey,  114  U.  S.  1 5     1 S5 
Aronson  v  ,  109  U.  S.  238        232 
Murray  v.    Charleston,  90    U.  S. 

432  34,  172 

The  Justices  v.,  9  Wall.    27  1 

231,  254 
Mullica  Township,  Middleton  v., 

112  U.  S.  433  20 

Murrav's  Lessee   r.   Hoboken  L. 

A  I.  Co.,  18  How.  272  220,  229 
Mugler  v.  Kansas,  1 23  U.  S.  623  267 
M.  &  B.  R.  R  ,  Cunningham  v.} 

109  U.  S.  440  220 

M.  &  C,  R.  R.  v.   Tennessee,  101 

U.  S.  337  180,  181 

M.  &  M.  R.  R.  v'.  Rock,  4  Wall. 

177  148,  199 

v.  Ward  2  Bl.  485  96 

M.  &  N.  W.  R.  R.,  Rice  v.,  I  Bl. 

358  177 

M.  &  St.  P.  R.  R.  v.  Atlee,  94  U. 

S.  179  178 

Nagle,  Wright  r.,  101  U.  S.  791 

149,  177 
Nathan  v.  Louisiana,  8  How.  73 

35,  40,  62 
Nations  v.  Johnson,  24  How.  195 

240,  245 
National  Bank,  Ottawa  v.,  105  U. 

S.  343  20 

Pelton  r.,  101  U.  S.  143  32 

Cumniings  v.,  101  U.  S.  677       32 


XXIV 


TABLE   OF    CASES    CITED. 


PAGE 

National    Bank  v.  Commonw'th, 

y  Wall.  353  28,  30,  33 

v.  U.  S.,  101  U.  S.  1  22 

Nashville,  Adams  v.,  95  U.  S.  191     31 
Nash  v.  Lull,  102  Mass.  60  236 

Neal  v.  Delaware,  103  U.  S.  370     253 
Newberrv,  Allen  v.,  21  How.  244 

47,  197 
Neff,  Pennoyer  v.,  95  U.  S.  714 

227,  239,    44,  245,  246 
Nelson  v.  St.  Martin's  Parish,  111 

U.  S.  716  154,  158,  160 

New  Orleans,  U.  S.  v.,  98  U.  S. 

381  19 

Cannon  v.,  20  Wall.  577 

25,  67,  121 

C.  &  B.  Co.  v.  99  U.  S.  97        26 
Water  Works,  St.  T.  W.  W. 

u,  120  U.S.  64  172 

Nesbit,  B.  &  S.  E,  E,  v.,  10  How. 

395  182,  183 

Nevada  Bank  v.  Sedgwick,  104  U. 

S.  Ill  18 

New  York,   Mercantile  Bank  v., 

121  U.  S.  138  31 

v.  Louisiana,  1 08  U.  S.  76        220 
City  of,  v.  Miln,  11  Pet.  103 

54,  68,  111,121,267 
New  Hampshire  v.  Louisiana,  108 

U.  S.  76  198,  220 

Newton  v.  Commissioners,  100  U. 

S.  548  179 

Neil  v.  Ohio,  3  How.  720  123 

New  Orleans,  Davidson  v.,  96  U. 

S.  97  226.  240,  254 

J.  S.  203 
150,  154,  180 
Moranv.,112U.S.  69         36,66 
Wolff  v.,  103  U.  S.  358 

154,  158,  160 
Gas  Co.  v.  Louisiana  Light 

Co.,  11 5  U.S.  650         146,172 
Water  Works  v.  Eivers,  115 

U.  S. 674  172 

Fouvergne  t>.,  18  How.  470     197 
Asylum  v.,  105  U.  S.  362 

33,  167,  168 
New  York  Indians,  The,  5  Wall. 

761  27 

P.  F.  Association  v.,  119  U. 

S.  110      40,  259,  260,  262,  265 
Miller  ».,  109  U.  S.  385  99 

Nevada,  State  of,  Crandall  v.,  6 
Wall.  35 

28,  73,  84.  87,  125,  134,  258 
Needles.  Chicago  Life  Ins.  Co.  v., 

113  U.  S.  574  177 

Neilson,  Foster  v.,  2  Pet.  253         274 
New  Jersey  v.  YTard,  95  U.  S.  104 

33,  167,  169 


PAGE 

New  Jersey  r.  Wilson,  7  Cr.  64  33,  166 

N.  H.  &  :N.CO.  v.  Hamersley,  104 

U.  S.  1  178,  269 

Nicholson.  Osborn   v.,  13  Wall. 

654  164,  264 

Nichol,  Furman  p.,  8  Wall.  44       172 

N.  J.  Navigation  Co.  v.  M'ch'ts 

Bank,  6  How.  344  197 

N.  M.  E.  K.  v.  Maguire,  20  Wall. 

46  176 

N.  O.  v.  Morris,  105  U.  S.  600       179 

Norton  v.  Shelby  County,  118  U. 

S.  425  193,274 

North  German  Lloyd,  Commis- 
sioners of  Immigration  v., 
92  U.  S.  269  36,  71 

Norwich  Co.  v.  Wright,  13  Wall. 

104  57 

City  of,  118  U.  S.  468  57 

Northrop  v.  Vaughan,  15  Pet.  1 

234,  238 

Nugent  v.  Bond,  3  How.  426  235 

N.  &  W.  E.  E.  v.  Johnson,  15 

Wall.  195  13 

Ochiltree  v.  I.  E.  C.  Co.,  21  Wall. 

249  151 

Ogden,  Gibbons  t\,  9  Wheat.  1 

8,  16,  34,40,41,42,44,50, 
86,  100,  108,  117,  123,215,  216 
v.  Saunders,  12  Wheat.  213 

154,  156,  158,  176,  182 
Ohio,  Neil  v.,  3  How.  720  123 

Shields  v.,  95  U.  S.  319 

33,  155,  169 
Kentucky  v.,  24  How.  66 

190,  191,  193,  198,  219 
L.  I.  &  T.  Co.  v.  DeBolt,  16 

How.  416  147,  149,177 

Fox  v.,  5  How.  432          235,  254 
Okely,  Bank  of  Columbia  v.,  4 

Wheat.  235  231 

Olcott  v.  The  Super  visors,  16  Wall. 

678  20,  147 

O.  Packet  Co.,  Aiken  v.,  121  U.  S. 

444  19 

Oregon,  Lane  County  v.,  7  Wall. 

71  112 

Orleans  v.  Phoebus,  11  Pet.  175       46 
Ortega,  U.  S.  v.,  11  Wheat.  467 

196,  205 
Osborne  v.  County  of  Adams,  106 

U.  S.  181 ;  109  id.  1  20 

v.  Mobile,  16  Wall.  479     35,  132 
Pulliam  v.,  17  How.  471          238 
Osborn  v.  The  Bank  of  the  U.  S., 
9  Wheat,  738 

10,  29,  186,  199.  211,  218,  224 
v.  Nicholson,  13  Wall.  654 

146,  264 


TABLE   OF    CASES    CITED. 


XXV 


Otoe,  County  of,  R.  R.  v.,  16  Wall. 

(50  /  "  20 

Otis  Bo.s»vell  t'.,  9  How.  336  239,  245 

Ottawa,  Hackett  »?.,  99  U.  S.  86  20 
v.  National  Bank,  105  U.  S. 

343  20 

v.  Carey.  108  U.  S.  110  20 
Ouachita  Packet  Co.  v.  Aiken,  121 

I*.  S.  4-U  106 
O  wings  v.  Speed,  5  Wheat.  420 

88,  146 

v.  Hull,  9  Pet.  607           213,  243 
O.  &  M.  R.  R    v.  McClure,   10 

Wall.  511  146,148 

v.  Wheeler,  1  Bl.  286      259,  260 

Pace  v.  Burgess,  92  U.  S.  372  81 

v.  Alabama,  105  U.  S.  583      265 
Packet  Co.  v.    Catlettsburg,    105 

U.  S.  559  19,  106 

v.   St.  Louis,  100   U.  S.  423 

19,  23,  106 
v  Keokuk,  95  U.  S.  80 

19,  105,  274 
Parkerflburg,  Transportation  Co. 

v,  107  U.  S.  691  19,  106 

Palmer,  Ernbry  v.,  107    U.  S.   3 

11,248 
Palmes,  L.    &  N.   R.  R.  v.,  109 

U.S.  244  149 

Patterson  v.  Kentucky,  97  U.  S. 

501  269 

Parham,  Morgan  v.,  16  Wall.  471 

36,  64 

Parrish  v.  Ellis,  16  Pet.  451  200 

Paul    v.  Virginia,   8    Wall.  168 

40,  41,  256,259,  260,  261,  262 
Parsons  v.  Bedford,  3  Pet.  433 

200,  230 

Parkinson  v.  U.  S.,  121  U.  S.  281  226 
Payson,  TurnbuU  v.,  95  U.  S.  418  248 
Paut  v.  Drew,  10  How  218  172 

Parham,  Woodruff  ».,  8  Wall.  123 

35,  41,  73,  79,  84,  85,  134 
Pacific  R.  R.,  Thomson  v.,  9  Wall. 

579     '  28 

Insurance  Co.    v.    Soule,   7 

Wall.  433  22 

Passaic    Bridge    Case,    The,    3 

Wall.  [App.l  782  97 

Passenger  Cases,    The,  7   How. 

283          34,  36,  42,  68,  70,  134 
Patterson,  Boom  Co.  v.,  98  U.  S. 

403  197 

Payne  v.  Hook,  7  Wall.  425  197 

Pallas,  I lunt  *.,  4  How.  589  209 

Parks,  Ex  pirte,  93  U.  S  18  228 

Packard,  Davis  v ,  7  Pet.  276  236 
Pacific  Nat'l  Bank  v.  Mixter,  124 

U.  S.  721  236 


PAGE 

Pervear  v.  The  Comm'th,  5  Wall. 

475  29,  254,  26;) 

Pennsylvania,   Carpenter    v.,  17 

How.  456  23,  24,  182,  183 

Pearson  v.  Yewdall,  95  U.  S.  294 

230,  240,  254 
Penna.    College   Cases,  13  Wall. 

190  170 

Peck,  Fletcher  v.,  6  Cr.  87 

153,  164,  182, 183,  274 
Peete  v.  Morgan,  19  Wall.  581 

25,  67,  118,  121 
Pegues,  Humphrey  v.,  16  Wall. 

244  167,  168,  171 

Peik  v.  C.  &  N.  W.  Ry.,  94  U.  S. 

164  127,  178,  268 

Peniston,  U.  P.  R.  R.  v.,  18  Wall. 

5  23 

Pennover  v.  Neff,  95  U.  S.  714 

227.  239,  244.  245,  246 
Penniman's  Case,  103  U.  S.  714  149 
Pennsylvania,  G.  Ferry  Co.  r.,  1 14 

"U.  S.  196  3t>."41,  65, 100, 103 
Cook  v.,  97  U.  S.  5<>(>  25,  40,  83 
E.  Hy.  r.,  21  Wai  1.492  34, 36, 171 
Prigg  v.,  16  Pet.  539 

12,  193,  252,  255 
People   v.  Compagnie  G.  T.,  107 

U.S.  59  35,71,87 

v.  Commissioners,  104   U.  S. 

466  35,  62 

Peters,  U.  S. «?.,  5  Cr.  115        223,  232 
Perot,  U.  S.  ».,  98  U.  S.  430  213 

People  v.  Comm'srs  of  Taxes,  etc., 

94  U.  S.  415  32,  33,  155 

Perrine  v.  C.  C.  Co.,  9  How.  192     177 
People,   The,    r.    The    Commis- 
sioners, 2  Bl.  620  26 
Pensacola  Tel.  Co.  v.  W.  U.  Tel. 
Co.,  96  U.  S.  1 

40,  41,  141,  142,  260 
Pennsylvania,    Erie    Ry.  v.,  15 

Wall.  282  136 

Butler  v.  10  How.  402     154, 179 
v.    Wheeling    &    Belmont 
Bridge  Co.,  18  How.  421 

94,  123 

Ex  parte,  109  U.  S.  174  116 

Peale  v.  Phipps,  14  How.  368 

234,  238 

People  v.  Weaver,  100  U.  S.  539    32 
Permoli  v.  First  Municipality,  3 

How.  589  255 

People  ?'.  Commissioners,  4  Wall. 

244  29,  3  ) 

People,  Bradley  v.,  4  Wall.  459        30 
Pelton  v.  National  Bank,  101  U. 

S.  143  32 

People,   University   r.,  99  U.  S. 

309  33,  148,  167,  168 


XXVI 


TABLE   OF   CASES    CITED. 


Pennsylvania  P  &  S.S.  S.  Co.v., 
122  U.  S.  326 

36,  42,  54,72,  84, 105,  132,  138 
Peters,  W  heaton  v.,  8  Pet.  591  200 
Pennsylvania,  Twitchell  v.,  7 

Wall.  321  209,  230,  254 

Peck  r.  Jenness,  7  How.  612  234,  238 
Pemileton,  VV.  LJ.  T.  Co.  v.,  122 

U.  8.  347  143 

Peyroux  v.  Howard,  7  Pet.  324        46 
P.  F.  Association   v.  New  York, 
119  U.  S.  110 

40,  259,  260,  262,  265 
Plielps  r.  Holker,  1  Dall.  261  246 
Ph  \env  Virginia,  8  How.  163  178 
Plulada.,  Christ  Church  v.,  24 

How.  300  168 

Gilruan  «?.,  3  Wall.  713 

4,  95,97, 13k  201 
U.  P.  Ey.  v.,  101  U.  S.  528 

34,  170 
Phoebus,  The  Orleans  v.,  11  Pet. 

175  46 

Philadelphia  v.  The  Collector,  5 

Wall.  720  209 

Phipps,  Peale  v.,  14   How.  368 

234,  238 
Pickardv.  P.  S.  C.  Co.,  117  U.S. 

34  36,  136 

Pierce  v.  Indseth,  106  U.  S.  546     212 

v.  Carskadon,  16  Wall.  234     153 

185,  186 

Piersol,  Elliott  v  ,  1  Pet.  328  245 
Pike,  County  of,  Douglass  v.,  101 

U.  S.  677  147 

Pilsburv,  Louisiana  v.,  105  U  S. 

278  153,158,  160 

Pittsburgh,  Kelly  v.,  104  U.  S. 

78  20,  226,  240,  254 

Bank,  Bank  of  the  U.  S.  v.,  9 

Wheat.  904  223 

Bank  v.  Sharp,  6  How.  301     172 
P.M.  S.  S.Co.,  Hays  v.,  17  How. 

596  36,  64 

Poole  v.  Fleeter,  11  Pet.  185  189 
Pound  v.  Turck,  95  U.  S.  459  198 
Portwardens,  Steamship  Co.  v , 

6  Wall.  31  36,  66,  67,  120 
Pollard  v.  Hagan,  3  How.  212 

2,  48,  255 
Potomac  Co .,  Mumma  v.,  8  Pet. 

281  177 

Preston,  Bors  v.,  Ill  U.  S.  252  205 
Presser  v.  Illinois,  116  U.  S.  252 

254,  269 

Prevost  v.  Greneaux,  19  How.  1    272 
•^.Providence   Bank  v.  Billings,  4 

Pet.  514  23,  33,  176 

Prigg  v.  Pennsylvania,  16   Pet. 

539  12,  193,  252,  255 


PAGE 

Provident   Institution   v.  Jeisey 

City,  113  U.  S.  506  240 

Institution  v.  Massachusetts, 

6  Wall,  (ill  26 

Prescott,  R.  H.  v  ,  16  Wall.  603  27 
P.  K.  E.  v.  Maguire,  20  Wall.  36 

33,  167 

Thompson  v.,  9  Wall.  579          28 
P.  S.   C.  Co.,  Pickard  v.,  117  U. 

S.  34  36,  136 

Tennessee  v.,  117  U.  S.  51 

;  6,  137 

P.  Telegraph  Co.  v.  W.  U.  Tele- 
graph Co.,  96  U  S.  1 

40,  41,  141,  142,  260 
Pulliam  v.  Osborne,  17  How.  471  238 
P.  &  S.  S.  S.  Co.  v.  Pennsylvania, 
122  U.  S.  326 
36, 42, 54,  72, 84,  li  5,  13:?,  133 

Queen  v.  Mil  is,  10  Cl.  &  Fin.  534,  97 
Queensbury  v.  Culver,  19  Wall.  b3  20 
Quincey,Van  Hoffman  v.,  4  Wall. 

552  ,152 

Kail  road  Companies    v.  Gaines, 

97  U.  S  697  33,  34,  155,  168, 
171 
Railway   Gross    Eeceipts,  State 

Tax  on,  15  Wall.  284  36 

Eamsey,  Murphy    v.,  114  U.  S. 

15  185 

Eandall  v.  Kreiger,  23  Wall.  137  149 

E.  E.,  Dennick  v.,  103  U.  S.  11      197 

v.  Jackson, 7  Wall.  262  24 

v.  Elleman,  105  U.  S.  166        173 

Eailway  Co.  v.  Whiton,  13  Wall. 

270  197,  259 

Eailroad  Co.  v.   Eichmond,    96 

U.  S.  521  268 

E.  E.  v.  Prescott,  16  Wall.  603  27 
Eeclamation  District  Hagar  v., 

Ill  U.  S.  701  12,  240 

Eeid,  U.  S.  v.,  12  How.  361  232 

Eeese,  U.  S.  v.,  W  U.  S.  214  201,  253 
Eenaud  v.  Abbott,  1 1 6  U.  S.  277  245 
Eeid,  W.  E.  E.  v.,  13  Wall.  264 

33,  167 

Eelfe  v.  Eundle,  103  U.  S.  222       263 

Eeid.  Webster  v.,  11  How.  437       246 

E.  &  G.  E.  E.  v.,  13   Wall. 

269  33,  167 

Scholey  v.,  23  Wall.  331  22 

Eemoval  Cases,  The,  100  U.  S. 

457  209 

Eeynolds  v.  U.  S.,  98  U-  S.  145      230 

Cooper  v.,  10  Wall.  ?08     245,  246 

Dial  v  ,  96  U.  S  340  233 

Ehode  Island  v.  Massachusetts,  12 

Pet.  657  2,  189,  198,  215 


TABLE   OF    CASES    CITED. 


XXV11 


PAGE 

Richmond,  Railroad  Co.  v.,96  U. 

s.  r>21  268 

Rice  r.  M.  &  N.  W.  R.  R.,  1  Bl. 

358  177 

Riaker,  Tiernan  v.,  102  U.S.  123 

35,  80,  2-38 
Riggs  t«.  Jolinson  County,  6  Wall. 

166  233 

Rives,  Virginia  v.,  100  U.  S.  313 

242,  253 
Rivers,  New  Orleans  Waterworks 

v.,  115  U.  S.  674  172 

Robbins,  Shaw  v..  12  Wheat.  369 

156, 158 
Robinson  v.  Campbell,  3  Wheat. 

212  200 

Rochereau,  Dupasseurv.,  21  Wall. 

130  249 

Rock,  M.  &  M.  R.  R.  v.,  4  Wall. 

177  148,  199 

Rose  v.  Himely,  4  Cr.  272  212,  245 
R  ibertson  v.  Ce  ise,  97  IT.  S.  616  199 
Rogers  «•.  Burlington,  3  Wall.  654  20 
Rxles.  Bronaon*.,  7  Wall.  229  12 
Rolls  County  Court  v.  U.  S.,  105 

U.  S*733  1)4,  158,  160 

R<>yall  v.  Virginia,  121  U.  S.  105  172 
Ro'ine.  Lionberger  v.,  9  Wall.  468  30 
Robb  v.  Connolly  111  U.  S.  624 

191,  237 
Rosenblatt  v.  Johnston.  104  U.S. 

462  29 

Robbins   v.   Shelby  County,  120 

U.  S.  489  '35,  79,  258 

R.  R.  v.  Rock,  4  Wall.  177  148,  199 
R.  R.  R.  v.  L.  R.  R.,  13  How.  81  177 
R.  T.  C.  S.  Bank,  Monltrie,  Co.  of, 

v.,  92  U.S.  631  154,159 

Russell,  Christmas  v.,  5  Wall.  290  244 
Ruggles  v.  Illinois,  108  U.  S.  526 

178,  269 

Runyan  v.  Coster,  14  Pet.  122         260 
Rundle,  Relfe  v.,  103  U.  S.  222       263 
D.  &  R.  C.  Co.  v.,  14  Flow.  807    47 
R.  &  Y.  R.  R.  v.  Reid,  13  Wall. 

269  33,  167 

Sands  v.  M.  R.  Improvement  Co  , 

123  U.  S.  288  19,  92,  98 

Santa  Clara  County  v.  S.  P.  R.  R., 

118  U.  S.  394  259,  265 

Sandforcl,  Dred  Scott  v.t  19  How. 

393  199,  256 

Sauvinet,  Walker  v.,  92  U.  S.  90 

230,  241,  254 
Sampson,  Wiswall  v.,  14  How.  52 

234,  238 
Satterlee   v.  Matthewson,  2  Pet. 

380  182,  183 

Safford,  Carroll  v.,  3  How.  441         27 


Saunders,  Ogden   i\,   12    Wheat 

213          1)1,  156,  158,  176,  182 
Schottler,  S.  V.  Waterworks   i?., 

110  U.  S.  347  17^,269 

School  Directors,  Hepburn  v.,  2i> 

Wall.  4-0  31,02 

Schurmeier  St.  P.  &  P.  R.  v ,  7 

Wall.  272  47 

Scholery  v.  Rew.  23  WTall.  331  22 
Scott  v.  Jones,  5  How.  343  146 

Seabury,  Cutting  v.,  Sprague  522  60 
Searight  v.  Stokes,  3  How.  151  123 
Sedgwick,  Nevada  Bank  v.,  104 

U.  S.  Ill  18 

Seemau,  Talbot  v.,  I  Cr.  1  212 

Shaw  o.  Robbins,  12  Wheat.  369 

156,  158 
Sheboygan,  Gil  man  v.,  2  Bl.  510 

19,  159 
Shelby   County,   Robbins  v.t  1  0 

U.  S.  4S9  35,  79,  258 

Norton  t;.,  118  U.  S.  425 

193,  274 
Memphis  Gas  Light  Co.  v., 

109  U.  S.  398  23,  33,  176 

Amy?;.,  114    U.  S.  387  179 

Shepherd,  C.  D.  Co.  v.,  20  How. 

232  259 

Sharp,  Planters'  Bank  v.,  6  How. 

301  172 

Sherlock  v.  Ailing,  93  U.  S.  99  60 
Shields  v.  Ohio,  95  U.  S.  319 

33,  155,  169 
Shriver's  Lessee  v.  Lynn,  2  How. 

43  245 

Shelden,  Chicago  v..  9  Wall.  50 

33,  147,  167 

Siebert  v.  Lewis,  122  U.  S.  284  1(5') 
Siebold  Exparte,  100  U.  S.371  254 
Silliman,  McClurg  v.,  6  Wheat. 

598  236 

Sinnot  v.  Davenport,  22  Mow.  227 

53,  68,  122,  270 

Singer,  U.  S.  v.,  15  Wall.  Ill  22 

Skelly,  J.  B.  Bank  v.,  1  Bl.  436 

33,  149,  167,  177 
Slaughter  House  Cases,  16  W.-ill. 

36     250,  25 1 , 256,  264,  265,  269 
Slaughter,  Groves  v.,  15  Pet.  449 

83,  252,  255 

Sloop  Betsy,  Glass  v.,  3  Ball.  7  245 
Slocum  v.  Mayberry,  2  Wheat.  9 

201,  236,  238 
Smales,  De  Treville  t'.,  98  U.  S. 

517  122 

Smith  v.  Coudry,  1  How.  28  243 

Ennes  v.,  14  How.  400      212,  245 

Freeborn  v..  2  Wall.  160          183 

F.  &  M.  Bank  v.,  6  Wheat. 

131  154, 156,  157 


XXV111 


TABLE   OF    CASES    CITED. 


Smith  v.  Maryland,  18  How,  71 

47,  48,  254,  255,  268 
White's   Bank    v.,    7  Wall. 

446  57 

Donly  v.,  18  Wall.  604  13 

v.  Mclver,  9  Wheat.  5:52          238 

v.  Alabama,  124  U.  S.  465       268 

Fneed,  Tennessee  v.,  96  U.  S.  69     151 

Society  for    Savings  v.   Coite,    6 

Wall.  594  26 

Soulard,  Jones  v.,  24  How.  41  47 

Soule,  Pacific  Insurance  Co.  v.,  7 

Wall.  433  22 

Soon  Hing  v.  Crowley,  113  U.  S. 

703  269 

Southard.  Way  man  v.,  10  Wheat.  1  231 
South  Carolina  v.  Georgia,  93  U. 

S.  4  87,  122 

Southern,  Hagood  v.,  1 17  U.  S.  52  219 
Speed,  O wings  v.,  5  Wheat.  420 

88,  146 

Sprague,  Hoyt  v,,  103  U.  S.  613      255 
Sprott  v.  U.  S.,  20  Wall.  459  189 

S.  P.  R  K.,  Santa  Clara  County  v., 

118  U.  S.  344  259.  265 

Springer  v.  U.  S.,  102  U.  S.  586 

22,  228 
Spies  v  Illinois,  123  U.  S.  137 

209,  240  254 
Spraige  v.  Thompson,  118  U.  S. 

90  115, 274 

State,  Brad  well  v.,  16  Wall.  130 

257,  265 
Bank    v.   Knopp,    16   How. 

369  149 

Turnpike  Co.  v.,  3  Wall.  210     177 
Freight  Tax,    Case    of,    15 

Wall.  232         18,  36,  125,  135 
Miller  v.,  15  Wall.  478  170 

Tax  on  Ry. Gross  Receipts,  15 

Wall.  281  72,  84,  131,  138,  139 
Tonnage  Tax  Cases,  12  Wall. 

204  25,  66 

Stewart,  Maxwell  v.,  22  Wall.  77 

244,  245,  246 
St.  Martin's   Parish,    Nelson  v., 

Ill  U.  S.  716        154,158,160 
Stone  v.  Wisconsin,  94  U.  S.  181  178 
v.  Mississippi,  101  U.  S.  814 

178,  269 
r.  F.  L.  &  T.  Co.,  116  U.   S. 

307  128,  178 

v.  I.  C.  R.  E.,  116  U.  S.  347 

128, 178 
Stockdale   v.   The  Ins.   Cos,  20 

Wall.  323  183 

St.  Clair  v.  Cox,  106  U.  S.  350 

245,  247,  261 
Strauder  v.  West.  Va.,  100  U.  S. 

303  241, 253 


PAGE 

Stacy  v.  Thrasher,  6  How.  44  247 
Stanton,  Georgia  v.,  6  Wall.  71  212 
Strother  v.  Lucas,  6  Pet.  763  212 
Stifle,  Drehman  v.,  8  Wall.  595  151 
Sturges  v.  Crowninshield,  4 

Wheat.  122  2,  4,  16,  40, 

111,  146,  149,    153,  154,   155, 
157,  164,  201,  215 
St.  Tammany  Water  Works  v.  N. 

O.  W.  Works,  Ik20  U.S. 64  172 
St  Clair  Co.,  Mills  v.,  8  How.  581  177 
St.  P.  &  P.  K.  11.  v.  Schurmeier, 

7  Wall.  272  47 

Stevens  v.  Griffith,  111  U.  S.  48  147 
Strader  v.  Giaham,  10  How.  93  252 
St.  Louis,  Packet  Co.  v.,  100  U. 

S.  423  19,  23,  106 

Stanley  v.  Supervisors,  121  U.  S. 

535  32 

Steamship  Co.  v.  Joliffe,  2  Wall. 

450  115,  116 

v.  Port  Wardens.  6  Wall.  31 

25,  36,  66,  67,120 

Stuart  v.  Laird,  1  Cr.  299  215 

Stone,  I-Iydet;.,  10  How.  170  197,  238 
St.  Lawrence,  The,  1  Bl.  522  197 

Stuart,     Lessee    of    Hickey  v.,  3 

How.  750  245 

Stockton,  Postmaster  Gen.  Ken- 
dall r.,  12  Pet.  527  2' 2 
Slory,  Livingston  v.,  9  Pet  632      200 
Stokes.  Searight  v.,  3  How.  151       123 
Supervisors,  Amy  v.,  11  Wall.  136  233 
v.  Durant,  9  Wall.  415  233 
Bank  v.,  7  Wall.  26  26 
Wadsworth  v.,  102  U.  S.  534  154 
Olcott  v.t  16  Wall.  678       20,  147 
Stanley  v.,  121  U.  S.  535           32 
Surget,  Ford  v.,  97  U.  S.  594  147, 189 
Suydam  v.  Broadnax,  14  Pet.  67 

154,  156,  238 

Williamson  v.,  6  Wall.  723     150 
S.  V.   Waterworks  v.  Schottler, 

110  U.  S.  347  178,  269 

S.  &  N.  A.  K.  R.v.  Alabama,  101 

U.  S.  832  180 

Tabb,  Boyce  v..  18  Wall.  546         264 

Taylor  «.  Ypsilanti,  105  U.  S.  60    20 

Conway  v..  1  Bl.  603        101,  268 

Terrett  »•.,  9  Cr.  43  166 

v.  Carryl,  20  How.  583  238 

Talbot  v.  Seeman,  1  Cr.  1  212 

Tappan  v.  M.  N.  Bank,  19  Wall. 

490  32 

Tarble's  Case,  13  WTall.  397  237 

Taylor,  Elmendorf  v.,  10  Wheat. 

'  152  243 

Tax  Court,  Bonaparte  v.,  104  U. 

S.  59  J  18,  24 


TABLE    OF    CASES    CITED. 


XXIX 


Telegraph  Co.  v.  Texas,  105  U. 

S.  400  26,  315,  142,  143 

v.    W.    U.    Telegraph    Co., 

96  U.S.I  40,41,141,142 

Tennessee  v.  Davis,  100  U.  S.  257 

200,  209 

v.  P.  S.  C.  Co.,  117  U.  S.  51  36, 137 
v.  Sneed,  96  U.  S.  69  151 

Van  Brocklin  v.,  117    U.   S. 

151  27 

M.  &  C.  R.  R.  v.,  101  U.  S. 

337  180,  181 

Farrington  ».,  95  U.  S  679     167 

Teal  v.  Feiton,  12  H  >\v.  284  235 

Terrett  v.  Taylor,  9  <Jr.  43  166 

Terry  v.  Anderson,  95  U.  S.  628     150 

Godfrey  v.,  95  U.  S.  171         199 

Texas  v.  White,  7   Wall.   701 

1,  2,  199,  212,  277 
Telegraph  Co.  v.,  105  U.   S. 

463  26,  36,  142,  143 

Thatcher,  Mayhew  v.,  6  Wheat. 

129  245 

Thrasher,  Stacy  v.,  6  How.  44        247 
Thomas.  The  City  of  Richmond, 

12  Wall.  349 
Thompson,  Spraigue  v.,  118  U  S. 

90  115,  274 

Kilbourne  v.,  103  U.  S.  163      11 
v.   Whitman,   18  Wall.   457 

245,  247 

Thomson  v.  P  R.  R.,  9  Wall.  579     28 
Tiernan   v.  Rinker,   102     U.   S. 

123  35,  80,  258 

Tinker,  In  man  S.  S.  Co.  v.,  94  U. 

S.  238  25,  67 

Tobin,Vicksburg  v.,  100  U.  S.  430 

19,  106 
Tomlinson  v.   Branch,    15  Wall. 

460  34,  171 

v.  Jessup,  15  Wall.  454  169 

Topeka,  Loan  Ass'n  v.t  20  Wall. 

655  20 

Trade-Mark  Cases,  100  U.S.   82 

41,61,274 

Transportation   Co.   v.   Parkers- 
burg,  107  U.  S.  691        19, 106 
v.  Wheeling,  99   U.  S.  273 

34,  35,  43,  65,  103 
Trask  v.  Maguire,    18  Wall.  391 

33,  155,  168 
Trapnall,  Woodruff  v.,  10  How. 

190  172 

Trigg  v.  Drew,  10  How.  224          172 
Trevor,  The  Hine  v.,  4  Wall.  556 

59,  197,  235 
Turnpike  Co.  v.  State,   3    Wall. 

210  177 

Tucker  v.  Ferguson,  22  Wall.  527 

27,  33,  34,  170,  177 


PAGE 

Turek,  Pound  v.,  95  U.  S.  459  98 
Turner  v.  Maryland,  107  U.  S.  38 

25,  86,  87 

Turnbull  v.  Payson,  95  U.  S.  418  248 
Turpin  v.  Burg'ess,  117  U.  S.  504  82 
Twitchell  v.  Pennsylvania,  7 

Wall.  321  209,  230,  254 

United  States  v.  Bevans,  3  Wheat. 

337  50,  200 

Boyd  *,  115  U.  S.  616  226 

v.  Arrendondo,  6  Pet.  691  275 
v.  B.  &  O.  R.  R.,  17  Wall. 

322  23 

v.  Cruickshank,  92  U.  S.  542 

201,  251,  253,  254 
v,  43  Gallons  of  Whiskey,  93 

U.  S.  188  144,  275 

v.  Fisher,  2  Cr.  358  10 

v.  Fox,  94  U.  S.  315  255 

v.  Hall,  98  U.  S.  343  10 

v.  Hamilton,  3  Dah.  17  228 

v.  Perot,  98  U.  S.  430  213 

v.  Harris,  106  U.  S  629 

2,  264,  266,  274 

Hyltonv.,3  Dall.  171  22 

Kohl  v.,  91  U.  S.  367  11 

Langford  v.,  101  U.  S.  341  2 
v.  Amedy,  11  Wheat.  392  243 
Mackin  v.,  117  U.  S.  348  226 
McElrath  v.,  102  U.S.  426 

197,  230 

v.  McBratney,  104  U.  S.  621  274 
v.  Marigold,  9  How.  560  11,  235 
Memphis  v.,  97  U.  S.  293 

154,  158, 160 

v.  Memphis,  97  U.  S.  284  179 
National  Bank  v.,  101  U.  S. 

1  22 

v.  Peters,  5  Cr.  115  223,  232 
v.  Ortega,  11  Wheat.  467 

N  196,  205 

Rolls  County  Court  v.,  105  U. 

S.  733  154, 158,  160 

Reynolds  v.,  98  U.  S.  145  230 
v.  Reese,  92  U.  S.  i'14  201,  253 
Springer  v.,  102  U.  S.  586 

22,  228 

Sprott  v.,  20  Wall.  459  189 

v.  Waddell,  112  U.  S.  76  12,  228 
v.  LeBris,121  U.  S.  278  144 
Parkinson  v.t  121  U.  S.  281  226 
v.  Singer,  15  Wall.  Ill  22 

v.  Coombs,  12  Pet.  72  46 

Mtge.  Co.,  Gross  v.,  108  U. 

S.  477  149,  265 

Fremont  v.,  17  How.  542  213 
v  N.  O.,  98  U.  S.  381  19 

v.  Haas,  3  Wall.  407  144 

v.  Hudson,  7  Cr.  32          200,  205 


XXX 


TABLE   OF    CASES    CITED. 


United     States    v.    Ooolidge,    1 

Wheat.  415  200 

v.  Holliday,  3  Wall.  407  141 
Gordon  v.,  2  Wall.  561  209 

v.  Reid,  12  Plow.  361  232 

v   Ferrera,  13  How.  40  209 

Bleyew  v,  13  Wall.  581  196 

Bridge  Co.  «.,  105  U.  S.  470  99 
v.  Fox,  95  U.  S.670  185,  200,  £01 
v.  Keehler,  9  Wall.  83  189 

v.  De  Witt,  9  Wall.  41     20,  267 
University,  Head    v.,    19    Wall. 

52J  179 

v.  People  99  U.  S.  300 

33, 148,  167,  168 
Union  Canal  Co  ,  Gilfillan  v  ,  109 

U.  8.  401  150 

U.  P.  R.  R.  v.  Peniston,  18  Wall. 

5  28 

U.  P.  Ry.  v.   McShane,  22  Wall. 

444  27 

v.   Philadelphia,  101   U.  S. 

528  34,  170 

Urtetiqui  v.  D'Arbel,  9  Pet.  692     248 
Utah,  i-Iopt  v.,  1 10  U.  S.  57 1  185 

Vance  v.  Vance,  108  U.  S.  514        150 
Van  Brocklin    v.  Tennessee,  117 

U.S.  151  27 

Van  Home   v.  Dorrance,  2  Dall. 

304  193 

Van  Noorden,  Capron  v ,  2  Cr. 

126  199 

Van  Hoffman  v.  Quincy,  4  Wall. 

532  152 

Vaughan  v.  Northrop,  15  Pet.  1 

234,  233 
Van   Allen  v.   The   Assessors,  3 

Wall.  513  29,  30 

Veazie  v  Moor,  14  How.  568     55,  92 
Bank  v.  Fenno,  8  Wall.  583 

10,  22,  23 
Vicksburg  v.  Tobin,  100  U.  S.430 

19,  106 

Virginia,  Phalen  v ,  8  Plow.  163     178 
Paul  v ,  8  Wall.  168 

40,  41.  256,  259,  260,  261.252 
Royally  121  U.  S.  105  '172 
Exports,  100  U.  S.  339  242  253 
Coupon  Cases,  1 1 4  U.  S.  270 

172,  188,  224,  274 

Cohens  v.,  6  Wheat  264          193, 

194,  195,  196,  197,   199,    201, 

215,  216,  222,  209 

v  Rives,  100  U.  S.  313     242,253 

Hollingsworth  v.,  3  Dall.  378  217 

McCready  v,  94  U.  S.  391 

48,  255,  257,  258,  268 
v.  West  Virginia  11  Wall.  39 

189, 198 


Virginia,  Webber  v.,  103   U.   S. 

344  29,  35,  76,  258 

Vorhees  v.  Bank  of  U.  S.,  10  Pet. 

449  245 

McKim  v.,  7  Cr.  279  237 

V.  S.  &  P.  R.  R.,  Hamilton  v., 

119  U.  S.  230  98 

Walling  v.  Michigan,   116  U.  S. 

446  3.".,  77,  258 

Ward,  M.  &  M.  R.  R  v.,  2  Bl  485     96 
v.  Maryland,  12  Wall.  418 

35,  75,  79,  258 
Wadsworthv  Supervisory,  102  U. 

S.  534  154 

Waddell,  Martin  v.,  16  Pet.  367       47 

U.S.'?;.,  112  U.  S.  76         12,  228 

Watson  v.  Jones,  13  Wall.  679       233 

Warren    Bridge,   Charles   River 

Bridge  'v,  11  Pet.  420  177 

Waite  v.  Dow  ley,  94  U.  S.  527  33 
Wall,  Ex  party  107  U.  S.  265  226 
Wallaces  McConnell,  13 Pet.  136 

237,  238 

Walcot  v  Diggs,  4  Cr  179  233 

Walker  v.  Sauvinet,  92  U.  S.  90 

230,  241,  254 

Lawlerv..  14  How.  149  199 

v.  Whitehead,  16  Wall.  314  153 
Waller,  Bigler  v.,  14  Wall.  297  13 
Waring  v.  The  Mayor,  8  Wall. 

110  85 

v.  Clarke,  5  How.  441  86, 197,  20 1 
Watson  v.  Mercer,  8  Pet.  88     182, 183 
Mobile    t>.,    116    U.  S.   289 

154,  158,  159 
Wardens,  etc.,  Board  of,  Coolev  v., 

12  How  299          111,  116,  134 
Board  of,  Steamship  Co.  v.,  6 

Wall.  :-l  25 

Wales  v.  Whitney,  114  U  S.  564  213 
Wavman  v.  Southard,  10  Wheat. 

1  231 

Webber  v.  Va.,  103  U.  S.  344 

29,  35,  76,  258 

Webster  v.  Reid,  11  How.  437  245 
Weber  v.  Harbor  Commissioners, 

18  Wall.  57  47,  48,  255 

Weltonv.  Missouri,  91  U.  S.  275 

35,  76,  258 

Weston  v.  Charleston,  2  Pet.  449      26 
Western  Union  Tel.  Co.,  P.  Tel. 
Co.  v.,  96  U.  S.  1 

40,  41,  141,  142,  260 
West  v.  Aurora  City,  6  Wall.  139  209 
Wells,  Exparte,  18"lPow.  307  228 
West  Virginia,  Strauder  v.,  100 

U.  S.  303  241,  253 

Virginia  r.,  11  Wall.  39    189.198 

Wethered  Bischoffr.,9  Wall.  812  245 


TABLE    OF    CASES    CITED. 


XXXI 


PAGE 

Weaver,  People  t.,  100  U.  S.  539  32 
W.  F.  Co.,  C.  &  A.  R.  R.  v.,  119 

U.  S  615  212,  213,  243 

C.  &  A.  K.  R.  v.,  108  U.  S. 

18  244 

St.  Louis  »«.,  11  Wall.  423  36,  103 
Wheeling,  Transportation  Co.  v., 

99  U.  S.  273  o4,  35, 43,  65,  103 
&   B.  Bridge  Co.,  Penna.  r., 

18  How.  421  94. 123 

Wheeler,  R.  R.  v.,  1  Bl.  286  259,  260 
Whiteliead,  Walker  v.,  16  Wall. 

314  153 

Whiskey,  43  gallons,  U.  S.  v.,  93 

U.  S.  188  144,  275 

Whitman,  Thompson  v.,  18  Wall. 

457  245,  247 

White  v.  Hart,  13  Wall.  646 

146, 152,  264 
Whittcn,  Ry.  v.,  13  Wall.  270 

60,  197,  200,  232.  259 
Whitney.  Curtis  v..  13  Wall.  68    150 
Texas  v.,  1  Wall.  701 

1,2,199,212,277 
White's  Bank  v.  Smith,  7  Wall. 

446  57 

Wheaton  v  Peters,  8  Pet.  591  200 
Whitney, Wales  v.,  114  U.  S.  564  213 
Williamson  v.  Suydam,  6  Wall. 

723  150 

Wiggins   Ferry   Co.   v.  East  St. 
Louis,  107  U   S.  365 

34,  35,  41,  43,  66,  102,  170 
W  lliams  v.  Louisiana,  103  U.  S. 

637  149 

v.  Bruffy,96U.  S.  176  189 

Williamson  «.  Berry,  8  How.  495  245 

Wilson,  Ex  parte,  1 14  U.  S.  417     226 

Wilcox  v.  Jackson,  13  Pet.  498      245 

v.  Jackson,  18  Pet.  498  224 

Wilson,  Cheever  v.,  9  Wall.  108    244 

v.  McNamee,  102  U.  S.  572 

115,  116 

New  Jersey  v.,  7  Cr.  64      33,  166 
v.  B.C. Marsh  Co.,  2  Pet.  250 

93,98,111 

Wisconsin,  Hall  v.,  103  U.  S.  5  172 
Wister,  Rank  of  Kentucky  t'.,  2 

Pet.  318  223 

Withers  v.  Buckley,  20  Plow  84 

92,  226,  254 


Wisconsin,  Stone  v.,  94  U.  S.  181    17« 
v.  Duluth,  96  U.  S.  379  89 

Windley,  Blount  v.,  95  U.S.  173 

151,154,  158 
Witherspoon  v.  Duncan,  4  Wall. 

210  23 

Wise  v.  Withers,  3  Cr.  331  213 

Withers,  Wise  7-.,  3  Cr  331  213 

Williams  v.  Benedict,  8  How.  107 

234,  238 
Wiswall  v.  Sampson,  14  How.  52 

234,  238 
Wo  Lee  v.  Hopkins,  118  T  .  S. 

356  265,  269 

Wolff  v.  New  Orleans,  K3  U.  S 

358  154,  158,  160 

Woodruff?-  Trapnall,10IIow.l(JO  172 
Woolsey.  Dodge  v.,  18  How.  3/1  193 
Worcester  v.  Georgia,  6  Pet.  515 

134,  144,  2(9 
Woodruff  r.  Parham,  8  Wall.  128 

35,41,73.  79.  84,  85,  134 
W.  R.  R.  v.  Reid,  13  Wall.  264 

33,  167 
Wright  v.  Nagle,  101  U.  S.  791 

149,177 

Norwich  Co.  i ,  1 3  Wall.  1 04    57 
W.  St.  L.  &  P.  Ry.  v.  Illinois, 

118U.  S.  557  12o,268,271 
Wurts  i'.  Hogeland.  114  U  S.  606  240 
W.  U.  T.  Co.  v.  Pendleton,  122 

U.S.  347  143 

W.  &  B.  Bridge  Co.,  Penna.  v ,  18 

How.  421  99,]!:3,200 

W.  &  St.  P.  R.  R.  v.  Blake,  94  U. 

S.  180  178 

W.  &  W.  R.  R.  v.  King,  91  U. 

S.3  152 

Yarborough,  Ex  parte,  110  U.  S 

651  11,12,228 

Yard,  New  Jersey  v.,  95  U.  S.  104 

33,  167,  169 

Yaker,  Haver  7...  9  Wall.  321         275 

Yewdall,  Pearson  r.,  95  U.  S.  294 

230.  240,  254 

Yick  Wo  v.  Hopkins,  118  I".  S. 

356  265,  269 

Ypsilanti,  Taylor  v.,  105  U.  S.  60    20 

Zacharie,  Boyle  v.,  6  Pet.  635  154,  156 


CHAPTER  I.  I" 

THE  RELATION  OF    THE   STATES  TO  THE  UNITED   STATES 
AND   TO    EACH   OTHER. 

1.  The  sanction  of  the  Constitution. 

2.  The  indissolubility  of  the  Union. 

3.  The  autonomy  of  the  states. 

4.  The  delegated  character  and  limited  powers  of  the  government  of  the 

United  States. 

5.  The  federal  supremacy. 

6.  The  restraints  upon  the  states. 

7.  The  force  and  effect  of  the  preamble  to  the  Constitution. 

1.  The  Constitution,  though  framed  by  a  convention, 
whose  members  were  elected  by  the  legislature  of  the 
states,  was  ratified  in  the  several  states  by  conventions 
whose  members   were  elected  by  the  people  of  their 
respective  states.     It  derives  its   whole  authority  from 
that  ratification,  and  when  thus  adopted,  it  was  of  com- 
plete obligation  and  it  thenceforth  bound  the  states,  and 
the  citizens  of  each  state.1 

2.  The  union  of  the  states  under  the  Constitution  was, 
from  and  after  the  ratification  of  that  instrument,  indis- 
soluble, and,  until  an  amendment  be  adopted,  authoriz- 
ing a  dissolution  of  the  union,  or  a  withdrawal  of  a  state 
from  the  union,  it  is  not  possible  for  a  state,  without 
violating  the  constitutional  compact,  to  withdraw  from 
the  union,  or  to  deprive  itself  of  its  rights  as  one  of  the 
United  States,  or  to  emancipate  itself  from  the  restraints 
imposed  by  the  Constitution  on  freedom  of  state  action.2 

1  Martin  v.  Hunter's  Lessee,  1  Wheat,  304,  324;  McCulloch  v.  Maryland,  4 
Wheat.  316,  404. 

2  Texas  v.  White,  7  Wall.  700;  White  v.  Hart,  13  Wall,  646;  Keith  v. 
Clark,  97  U.  S.  454. 

I 


\L  THE    AUTONOMY    OF    THE    STATES. 

3.  The  thirteen  original  states  were  existing  govern* 
merits  when  the  Constitution  was  ratified  ;  and,  states  1 
admitted  to  the  union  under  the  Constitution  have  as  j 
regards  the  United  States  and  the  other  states,  in  all  I 
respects  in  which  the  effect  of  that  instrument  has  not  I 
been  changed  by  amendment,  the  same  rights,  powers,  I 
and  obligations  as  the  thirteen  original  states.1     There- 
fore, in   so    far  as  the  states   are   not    controlled    by 
the  expressed,  or  implied,  restrictions,  contained  in  the 
Constitution  of  the  United  States,  they  may   severally 
exercise  all  the  powers  of  independent  governments.2 
Tiie  states,  though  united  under  the  sovereign  authority 
of  the  Constitution,  are,  so  far  as  their  freedom  of  action 
is  not  controlled  by  that  instrument,  foreign  to,  and 
independent  of  each  other.3 

4.  The  government  of  the  United  States,  in  its  relation 
to  the  several  states  and  to  the  citizens  of  those  states, 
is   one  of  delegated  and  limited   powers,  which    are, 
expressly  or  by  necessary  implication,  granted  by  its 
written  Constitution.4     The  Constitution  has  created  a 
government,  divided  into  three  departments,  legislative, 
executive,  and  judicial.     As  the  chief  function  of  the 
executive  department,  apart   from   its  participation  in 
legislation  by  the  exercise  of  a  qualified  veto,  is  that 
of  administering  the  laws  of  Congress,  and  as  the  primary 
duty  of  the  judicial  department  is  that  of  expounding 
the  Constitution  and  the  laws  in  their  application    to 
subject-matters  of  judicial    cognizance,  either  civil  or 

1  Pollard  v.  Hagan,  3  How.  212 ;  Texas  v.  White,  7  Wall.  700. 

2  Amendments  to  the  Constitution,  articles  ix  and  x;  Martin  v.  Hunter's 
Lessee,  1  Wheat.  304,  325;  Sturges  v.  Crowninshield,  4  Wheat.  193;  Texas  v. 
White,  7  Wall.  700,  721. 

3  Buckner  v.  Findley,  2  Pet.  586,  590;  Khode  Island  v.  Massachusetts,  12 
Pet.  722. 

4  Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  326;  Marbury  v.  Madison,  1  Cr. 
137,  176;  Briscoe  v.  Bank  of  Kentucky,  11  Pet.  317 ;  U.S.  t>.  Harris,  106  U.  S. 
627 ;  Langford  v.  U.  S.,  101  U.S.  34. 


THE    FEDERAL   SUPREMACY.  3 

criminal,  it  is  obvious,  that  the  powers  conferred  by  the 
Constitution  upon  the  government  of  the  United  States 
are,  in  the  main,  powers  of  legislation.  The  powers 
granted  by  the  Constitution  to  the  government  of  the 
United  States  are  either  expressed  or  implied.  The 
expressed  powers  are  those  which  are  specifically  stated 
in  the  Constitution.  The  implied  powers  are  those  which 
authorize  the  use  of  appropriate  means,  which  are  con- 
sistent with  the  letter  and  spirit  of  the  Constitution,  for 
the  accomplishment  of  legitimate  ends,  which  are  not 
prohibited,  and  which  are  within  the  scope  of  the  Con- 
scitution.1  The  powers  granted  by  the  Constitution  to 
tiie  United  States  are  subject  to  certain  expressed  excep- 
tions, which  are  contained  in  the  9th  section  of  arti- 
cle I  of  the  Constitution,  and  in  the  first  eleven  of  its 
amendments. 

5.  Article  VI  of  the  Constitution  declares,  that  "this 
Constitution  and  the  laws  of  the  United  States,  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land; 
and  the  judges  in  every  state  shall  be  bound  thereby, 
anything  in  the  Constitution  or  laws  of  any  state  to  the 
contrary  notwithstanding."     By  force  of  this   consti- 
tutional provision,  the  government  of  the  United  States, 
as  Marshall,  C.  J.,  said  in    McCulloch  v.  Maryland,2 
"  though  limited  in   its  powers,  is  supreme  within  its 
sphere  of  action,"  and,  to  the  extent,  and  in  the  exercise, 
of  the  powers  delegated  to  it,  it  is  a  sovereignty.3 

6.  The  restraints  imposed  by  the  Constitution  upon 

1  /»/ra,  chapter  n ;  Constitution,  art.  I,  sec.  8;    McCulloch  v.  Maryland,  4 
Wheat.  421. 

2  4  Wheat.  316,  405. 

3  Alexander  Hamilton's  argument  of  23  February,  1791,  as  to  the  constitu- 
tionality of  a  national  bank.   3  Lodge's  Hamilton's  Work,  181 ;  Julliard    v. 
Greenman,  110  U.  S.421. 


4  RESTRAINTS    ON    THE    STATES. 

the  states  are  either  expressed  or  implied.  The  ex- 
pressed restraints  are  those  wliich  are  specifically  stated 
in  the  Constitution.  The  implied  restraints  are  those 
which  result  from  the  express  grant  by  the  Constitution 
of  certain  powers,  whose  nature,  or  the  terms  of  whose 
grant,  require  that  they  should  be  exclusively  exercised 
by  the  United  States.1  The  expressed  restraints, 
are,  first,  those  which  affect  the  relations  of  the 
several  states  to  other  states,  foreign  and  domestic ; 
and,  second,  those  which  have  reference  to  the  rela- 
tions between  the  states  and  their  citizens,  and  which 
limit  the  exercise  by  the  states  of  their  powers 
of  legislation.  The  expressed  restraints  of  the  first 
class  include  the  prohibition  of  treaties,  alliances, 
confederations,  agreements,  or  compacts  with  another 
state  or  with  a  foreign  power;  the  obligation  not  to  issue 
letters  of  marque  and  reprisal,  or  to  maintain  troops  or 
ships  of  war  in  times  of  peace,  or  to  engage  in  war  un- 
less actually  invaded  or  in  such  imminent  danger  as 
will  not  admit  of  delay  ;  the  requirements  that  full  faith 
and  credit  shall  be  given  in  each  state  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other  state, 
and  that  the  citizens  of  each  state  shall  be  entitled  to 
all  the  privileges  and  immunities  of  citizens  of  the  sev- 
eral states,  and  that  fugitives  from  justice  shall  be  sur- 
rendered from  one  state  to  another.  The  expressed 
restraints  of  the  second  class  include  the  prohibition 
of  the  grant  of  titles  of  nobility,  of  the  coinage  of 
money,  of  the  emission  of  bills  of  credit,  of  the  estab- 
lishment of  any  legal  tender  other  than  gold  and  silver 
coin,  of  the  imposition  of  duties  of  tonnage  and  duties 
on  imports  or  exports,  excepting  such  as  may  absolutely 
be  necessary  for,  the  execution  of  inspection  laws;  of 

1  Sturges  v,  Crowninshield,  4  Wheat.  122, 193;  Houston  v.  Moore,  5  id.  49 ; 
Oilman  v.  Philadelphia,  3  Wall.  730. 


IMPLIED    KESTKAINTS.  O 

the  rehabilitation  of  slavery  or  involuntary  servitude, 
except  as  a  punishment  for  crime ;  of  the  deprivation 
of  any  person  of  life,  liberty,  or  property  without  due 
process  of  law ;  of  the  denial  to  any  person  of  the  equal 
protection  of  the  law ;  of  disfranchisement  on  account 
of  race,  colour,  or  previous  condition  of  servitude,  or  for 
any  cause,  except  for  participation  in  rebellion  or  other 
crime,  of  any  of  the  male  inhabitants  of  a  state  who  are 
twenty-one  years  of  age  and  citizens  of  the  United 
States;  of  "the  election  or  the  appointment  to  office 
under  a  state  of  any  person,  who,  having  previously 
taken  an  oath  as  a  member  of  Congress,  or  as  a  member 
of  any  state  legislature,  or  as  an  executive  or  judicial 
officer  of  any  state,  to  support  the  Constitution  of  the 
United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to 
the  enemies  thereof/'  and  whose  disabilities  shall  not 
have  been  removed  by  a  vote  of  two-thirds  of  each  house 
of  Congress,  of  the  assumption  or  payment  of  any  debt 
or  obligation  incurred  in  aid  of  insurrection  or  rebellion 
against  the  United  States,  or  of  any  claim  for  the  loss 
or  emancipation  of  any  slave ;  and  of  the  enactment  of 
bills  of  attainder,  ex  post  facto  laws,  or  laws  impairing 
the  obligation  of  contracts. 

The  implied  restraints  limit  the  action  of  the  states 
with  regard  to  taxation,  the  regulation  of  commerce, 
and  the  personal  and  property  rights  of  their  citizens, 
and  of  the  citizens  of  other  states. 

Many  of  the  restraints  are  so  clear  in  their  terms, 
and  so  little  require  judicial  construction,  that  no 
question  has  ever  been  raised  as  to  their  legal  effect, 
but  others  of  those  restraints  have  been  frequently 
subjects  of  litigation.  For  the  purposes  of  this 
treatise  it  is  unnecessary  to  make  further  reference 
to  the  restraints  with  regard  to  the  issue  of  letters 


6  THE    PREAMBLE. 

of  marque  or  reprisal,  the  maintenance  of  troops  or 
ships  of  war  in  time  of  peace,  the  engagement  in 
war  unless  actually  invaded  or  in  such  imminent  danger 
as  will  not  admit  of  delay,  the  grant  of  titles  of  nobility, 
or  the  coinage  of  money.  As,  happily  for  the  peace 
and  prosperity  of  the  country,  slavery  is  of  past,  and 
not  of  present,  interest,  it  is  not  deemed  necessary  to 
refer  to  that  subject  further  than  to  note  that  the 
XIII  Amendment  has  abolished  it  in  every  form,  and 
forbidden  its  re-establishment. 

7.  The  preamble  to  the  Constitution  declares  that 
"  We,  the  people  of  the  United  States,  in  order  to  form 
a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defense,  promote 
the  general  welfare,  and  secure  the  blessings  of  liberty 
to  ourselves  and  our  posterity,  do  ordain  arid  establish 
this  Constitution  for  the  United  States  of  America." 
That  the  true  significance  of  that  declaration  may  }<e 
understood,  it  must  be  remembered  that  the  people, 
whose  ratification  of  the  instrument  gave  it  its  legal 
validity  were  citizens  of  independent  states,  which  had 
been  theretofore  bound  together  in  a  confederation,  and 
which  were  thenceforth  to  be  united  under  a  govern- 
ment which,  though  limited  in  its  action  by  the  reserva- 
tion to  the  several  states  of  all  powers  not  delegated  to 
the  United  States,  should  yet  be  supreme  within  its 
defined  bounds.1 

Therefore,  the  government  created  by  the  Constitu- 
tion is,  to  the  extent  of  the  powers  vested  in  that  gov- 
ernment, national  in  its  character,  and,  by  force  of  the 
rights  reserved  to  the  states,  it  is,  also,  a  league  of 
sovereign  and  independent  states;  and  every  citizen  of 
each  state,  while  owing  allegiance  to  his  state  in  all 
matters  not  controlled  by  the  powers  granted  to  the 

1  Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  325, 


THE    PREAMBLE.  7 

United  States,  owes  also  a  paramount  allegiance  to  the 
United  States  in  all  that  is  made  by  the  Constitution 
of  federal  obligation.  In  view  of  this  dual,  and  yet 
undivided,  allegiance  due  by  those  who  are  citizens  of 
the  United  States  and  also  citizens  of  a  state,  it  was,  in 
the  hour  of  its  formation,  and  it  has  ever  since  been, 
essential  to  the  right  administration  of  the  government 
of  the  United  States  under  the  Constitution  that  there 
should  be  a  clear  appreciation  of  the  complex  character 
of  that  government,  and  a  careful  maintenance  of  the 
balance  of  power  as  between  the  government  of  the 
United  States  and  the  governments  of  the  several  states. 


CHAPTER  II. 

THE  IMPLIED  POWEKS. 

8.  The  necessity  of  their  existence. 

9.  Their  constitutional  recognition. 

10.  The  test  of  the  relation  of  the  means  to  the  ends. 

11.  Illustrations  of  the  exercise  of  the  implied  powers. 

12.  The  legal  tender  question. 

13.  The  possible  scope  of  the  legal  tender  cases  as  authorities. 

8.  The  Constitution  was  not  framed  to  meet  only  the 
exigencies  of  the  period  of  its  formation,  nor  does  it 
purport  to  be  a  code,  which  with  minute  detail  pre- 
scribes all  that  may  be  done  and  all  that  may  not  be 
done  by  Congress  in  the  execution  of  the  powers  speci- 
fically granted.1  As  Mr.  Webster  said  in  his  argument 
in  Gibbons  v.  Ogden,2  and  as  Marshall,  C.  J.,  repeated 
in  his  judgment  in  that  cause,3  the  Constitution  enumer- 
ates, but  does  not  define,  the  powers  which  it  grants, 
nor  does  it  prescribe  the  means  which  rnay  rightfully  be 
used  in  executing  those  powers,  and  without  whose  use, 
the  grant  of  the  powers  would  be  nugatory.4  Therefore, 
if  the  Constitution  contained  no  clause  recognizing  the 
existence  of  powers  which  are  subsidiary  or  incidental 
to  the  powers  expressly  granted,  it  would  be  impossible 
to  avoid  the  conclusion  that  there  is  an  implied  grant  of 
such  incidental  powers,  for  otherwise  the  powers  ex- 
pressly granted  would  be  practically  inoperative.  Nor 

1  McCulloch  v.  Maryland,  4  Wheat.  406 ;  Martin  v.  Hunter's  Lessee,  1  id. 
326. 

2  6  Webster's  Works  9. 

3  9  Wheat  189. 

*  McCulloch  v.  Maryland,  4  Wheat.  407. 


CONSTITUTIONAL    RECOGNITION. 

is  the  force  of  this  conclusion  at  all  affected  by  the  X 
Amendment,  for  while  that  amendment  in  terms  forbids 
the  exercise  by  Congress  of  any  un delegated  power,  it 
does  not  forbid  the  exercise  of  powers  which  are  dele- 
gated by  implication.1 

9.  Section  8  of  article  I  of  the  Constitution  declares 

that  "  the  Congress  shall  have  power to  make 

all  laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  government 
of  the  United  States  or  in  any  department  or  officer 
tliereof."     But  it  may  be  said,  who  is  to  conclusively  de- 
termine whether  or  not  any  statute  is,  within  the  terms 
of  the  Constitution,  "necessary  and  proper  for  carrying 
into  execution"  a  power  granted  by  the  Constitution  to 
Congress?     If  Congress   can   so  determine,  obviously 
any  and  every  act  of  Congress  must  be  regarded  as 
constitutional.     If  in  the  exercise  of  judicial  jurisdic- 
tion the  final  determination  of  that  question  is  to  be 
made  by  the  court,  what  principles  are  to  guide  the 
judges  in  coming  to  a  conclusion,  and  by  what  test  are 
they  to  determine  the  relation  between  the  means  and 
the  end,  and  the  degree  of  the  necessity  and  the  pro- 
priety of  the  use  of  the  particular  means  ? 

10.  The  result  of  the  authorities,  so  far  as  they  afford 
an  answer  to  this  question,  can  be  best  stated  by  the 
quotation  of  a  famous  dictum  originated   by  Mr.  Ham- 
ilton2 and  paraphrased  by  Chief  Justice  Marshall  in  the 
judgment  in  McCulloch  v.  Maryland,3  and  which,  in  its 
final  perfected  form,   is  as  follows:   "let  the   end  be 
legitimate,  let  it  be  within  the  scope  of  the  Constitution, 
and  all  means  which  are  appropriate,  which  are  plainly 

1  Mr.  Hamilton's  argument  as  to  a  national  bank.    3  Lodge's  Hamilton's 
Works  183;  McCulloch  v.  Maryland,  4  Wheat.  406. 

2  Argument  as  to  a  national  bank.     3  Lodge's  Hamilton's  Works  190. 

3  4  Wheat.  421. 


10  IMPLIED    POWEKS. 

adapted  to  the  end,  which  are  not  prohibited,  but  con- 
sist with  the  letter  and  spirit  of  the  Constitution,  are 
constitutional." 1  This  dictum  means  that  Congress  may, 
in  the  execution  of  a  power  expressly  granted,  adopt 
any  means  which  (1)  are  not  expressly  prohibited  by 
the  Constitution,  nor  (2)  inconsistent  with  the  letter 
and  spirit  of  the  Constitution,  and  which  are  (3)  not 
the  only  possible  means,  nor  an  absolutely  or  indispen- 
sably necessary  means,  but  an  appropriate  and  plainly 
adapted  means,  to  the  attainment  of  an  end  authorized 
by  the  Constitution.  From  this  it  follows,  that  if  the 
relation  of  the  means  to  the  end  be  shown  to  exist,  and 
if  the  use  of  the  particular  means  be  not  expressly  or 
impliedly  forbidden  by  the  Constitution,  the  question 
of  the  degree  of  its  appropriateness,  of  its  greater  or 
less  adaptation,  and  of  its  relative  or  absolute  necessity 
is  purely  political,  and  the  determination  of  Congress 
with  regard  thereto  is  binding  upon  the  courts. 

11.  Under  the  doctrine  of  the  implied  powers,  it  has 
been  held  that  Congress  may  enact  statutes  creating 
banking  corporations  as  fiscal  aids  to  the  government  ;2 
imposing  upon  national  and  state  banks  a  tax  upon  the 
amount  of  the  notes  of  state  banks  paid  out  by  them  ;3 
giving  priority  to  the  United  States  as  a  creditor  in  the 
distribution  of  the  assets  of  a  bankrupt  ;4  declaring  that 
the  embezzlement  by  a  guardian  of  his  ward's  pension 
granted  by  the  United  States  is  a  crime  against  the 
United  States  ;5  taxing  lands  in  the  District  of  Colum- 


1  The  opposing  view,  sustaining  the  strict  construction  of  the  Constitution, 
is,  perhaps,  most  strongly  put  by  Mr.  Jefferson.     Memoirs,  vol.  iv,  pp.  197, 
207,  526 ;  4  Elliot's  Debates  609. 

2  McCulloch  v.  Maryland,  4  Wheat.  316;  Osborn  v.The  Bank  of  the  United 
States,  9  id.  738. 

3  Veazie  Bank  v.  Fenno,  8  Wall.  533. 

4  U.  8.  v.  Fisher,  2  Cr.  358. 

5  U.  S.  v.  Hall,  98  U.  S.  343. 


ILLUSTRATIONS.  11 

bia;1  declaring  it  to  be  a  crime  to  bring  into  the  United 
States  from  a  foreign  place,  counterfeit  coins  forged  in 
the  simiitude  of  coins  of  the  United  State;2  constitut- 
ing a  judicial  system  to  carry  into  execution  the  judicial 
powers  vested  by  the  Constitution  in  the  United  States  ;3 
regulating  the  carriage  of  the  mails  and  determining 
what  may  be  transported  and  what  must  be  excluded 
from  the  mails  ;4  punishing  for  contempt  others  than 
members  of  Congress  ;5  protecting  citizens  of  the  United 
States  in  the  exercise  of  the  rights  of  suffrage  at  elec- 
tions for  members  of  Congress  ;6  authorizing  a  limited 
intercourse  on  prescribed  conditions  with  the  enemy  in 
time  of  war  ;7  prescribing  the  effect  to  be  given  in  state 
courts  to  judgments  and  decrees  rendered  in  courts  of 
the  United  States  ;8  authorizing  the  issue  by  courts  of 
the  United  States  of  writs  of  habeas  corpus  ad  subjicien- 
dum  in  cases  of  restraint  of  personal  liberty  under  the 
process  of  state  courts  issued  in  violation  of  rights 
claimed  under  the  Constitution  or  laws  of  the  United 
States  ;9  authorizing  the  removal  to  the  courts  of  the 
United  States  of  causes  depending  in  state  courts  and 
involving  questions  of  Federal  cognizance  ;10  exercising 
the  right  of  eminent  domain  with  regard  to  land  within 
the  bounds  of  a  state  and  held  in  private  ownership  ;u 
in  order  to  protect  purchasers  under  the  homestead  laws 


1  Loughborough  v.  Blake,  5  Wheat.  317. 

2  The  United  States  v.  Marigold,  9  How.  560. 
8  Ablemanv.  Booth,  21  How.  500,  521. 

*  Exparte  Jackson,  96  U.  S.  727. 

6  Anderson  v.  Dunn,  6  Wheat.  204 ;  sed.  cf.  Kilbourn  v.  Thompson,  103  U. 
S.  168. 

6  Ex  parte  Yarbrough,  110  U.  S.  651. 
'  Hamilton  v.  Dillin,  21  Wall.  73. 

8  Embry  v.  Palmer,  107  U.  S.  3. 

9  Exparte  Roy  all,  117  U.  S.  241 ;    Exparte  Fonda,  ibid.  516. 

10  Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  349. 

11  Kohl  v.  The  United  States,  91  U.  S.  367. 


12  IMPLIED    POWERS. 

of  lands  belonging  to  the  United  States  but  situated 
within  the  limits  of  a  state,  punishing  those  who  con- 
spire to  intimidate  such  purchasers  and  drive  them  away 
from  the  land  so  purchased,1  and  prohibiting,  under 
penalties,  officers  of  the  United  States  from  requesting, 
giving  to,  or  receiving  from  any  other  officer  money  or 
property,  or  other  things  of  value,  for  political  pur- 
poses.2 

12.  It  has  also  been  held  that  Congress  may  issue  a 
paper  currency  and  declare  that  that  currency  shall  be  a 
legal  tender  in  payment  of  debts.  Until  in  1862  the 
financial  needs  of  the  government  in  carrying  on  a  war 
for  the  suppression  of  the  rebellion  rendered  it,  in  the 
opinion  of  Congress,,  necessary  that  the  treasury  notes 
of  the  United  States  should  be  made  a  legal  tender  in 
the  payment  of  debts,  neither  statesmen  nor  jurists  had 
asserted  that  Congress  had,  under  the  Constitution,  the 
power  of  making  anything  but  gold  or  silver  coin  a  legal 
tender.  The  acts  of  Congress  of  25  February,  1862; 
11  July,  1862,  and  3  March,  1863,3  declared  that  the 
notes  issued  thereunder  should  be  "  lawful  money  and 
a  legal  tender  in  payment  of  all  debts,  public  and  pri- 
vate, within  the  United  States,  except  duties  on  imports, 
etc."  Under  these  acts  it  has  been  decided  that  neither 
taxes  imposed  by  state  authority,4  nor  private  obliga- 
tions payable  by  their  terms  in  gold  or  silver  coin,5  are 

1  United  States  v.  Waddell,  112  U.  S.  76. 

2  Ex  parte  Curtis,  106  U.  S.  371 ;   Stat.  15  Aug.,  1876,  c.  287,  sec.  6. 

For  further  illustrations  of  the  implied  powers  of  legislation  which  Con- 
gress may  exercise,  see  the  judgments  of  Story,  J.,  in  Prisg  v.  Penna.,  16 
Pet.  619;  of  Strong,  J.,  in  The  Legal  Tender  Cases,  12  Wall.  457,  535;  of 
Gray,  J.,  in  Juilliard  v.  Greeman,  110  U.  S.  421,  444,  and  of  Miller,  J.,  in  Ex 
parte  Yarbrough,  110  U.  S.  658. 

3  12  Stat.  345,  532,  709. 

4  Lane  County  v.  Oregon,  7  Wall.  71 ;   Hagar  v.  Keclamation   District,  111 
U.  S.  701. 

5  Bronson  v.  Khodes,  7  Wall.  229;  Butler  v.  Horwitz,  ibid.  258;   Bronson 
v.  Kimpton,  8  id.  444. 

* 


LEGAL    TENDER.  13 

debts  within  the  terms  of  the  acts  of  Congress  dis- 
chargeable  by  payment  in  legal  tender  notes.  In  Hep- 
burn v.  Griswold,1  the  court  held  that  the  Legal  Tender 
Acts  applied  to  debts  contracted  before  as  well  as  to 
debts  contracted  after  the  enactment  of  those  statutes, 
and  that,  so  far  as  they  applied  to  debts  contracted  be- 
fore their  passage,  the  statutes  were  unconstitutional,  but 
in  the  Legal  Tender  Cases 2  Hepburn  v.  Griswold  was 
overruled,  so  far  as  regards  the  second  branch  of  the 
proposition  laid  down  in  it.  and  the  constitutionality  of 
the  Legal  Tender  Acts  was  sustained,  the  ground  of 
decision  being  that  the  power  to  impress  the  notes  of 
the  government  with  the  quality  of  legal  tender,  though 
not  expressed  in  the  Constitution,  was  "  necessary  and 
proper  for  carrying  into  execution  "  the  express  powers 
to  "  coin  money,"  "to  regulate  the  value  thereof,"  "  to 
pay  the  debts,"  "  to  borrow  money,"  "  to  raise  and  sup- 
port armies,"  and  "  to  provide  and  maintain  a  navy ;"  that 
the  Constitution  does  not  expressly  prohibit  the  issue  of 
legal  tender  notes  by  the  United  States ;  that  their  issue 
is  not  inconsistent  with  the  letter  or  the  spirit  of  the 
Constitution,  and  that  the  end  being  constitutional  and 
the  means  being  appropriate,  the  degree  of  its  appropri- 
ateness is  subject  to  legislative,  and  not  judicial,  deter- 
mination. The  Legal  Tender  Cases  are  followed  and  sup- 
ported by  Dooley  v.  Smith,3  Bigler  v.  Waller,4  N.  & 
W.  R.  K.  v.  Johnson,5  and  Juilliard  v.  Greeman,6  in 
the  last  of  which  cases  it  was  held,  that  the  power  to 
make  treasury  notes  a  legal  tender  exists  in  time  of  peace 
as  well  as  in  time  of  war,  and  that  legal  tender  notes 
when  redeemed  by  the  Treasury  and  reissued  under  the 
Act  of  31  May,  1878,  retain  their  legal  tender  quality- 

1  8  Wall.  603.  *  14  id.  297. 

2  12  Wall.  457.  6  15  id.  195. 

3  18  Wall.  604.  6  110  U.  S.  421. 


14  IMPLIED    POWERS. 

If  the  question  were  not  concluded  by  authority,  and 
if  it  were  open  to  examination  on  principle,  it  would 
be  difficult  of  solution,  and  those  who  have  studied  it 
the  most  thoroughly  would  most  hesitate  to  dogmati- 
cally state  a  conclusion  either  for  or  against  the 
constitutionality  of  the  Legal  Tender  Acts.  The  Con- 
stitution does  not  expressly  authorize,  nor  prohibit, 
the  enactment  of  such  statutes  by  Congress ;  it  does 
expressly  forbid  the  states  to  coin  money,  emit  bills  of 
credit,  or  make  anything  but  gold  and  silver  coin  a 
legal  tender ;  it  makes  the  government  of  the  United 
States  a  sovereignty,  whose  powers  are,  it  is  true,  enumer- 
ated, but  which  is  none  the  less,  within  the  limits  of 
those  powers,  a  sovereignty,  to  whose  control  are  in- 
trusted "the  sword  and  the  purse,  all  the  external  re- 
lations, and  no  inconsiderable  portion  of  the  industry 
of  the  nation/'1  and  which  in  the  execution  of  its  great 
powers  is  entitled  to  use  the  appropriate  means ;  it  for- 
bids the  states,  but  it  does  not  forbid  the  United  States, 
to  impair  the  obligation  of  contracts ;  and  it  expressly 
empowers  the  United  States  "to  coin  money,"  and  "to 
regulate  the  value  thereof."  It  seems  to  me,  as  Mr. 
Justice  Holmes  has  said,2  that  the  controversy  really 
turns  on  the  construction  of  the  last  clause  quoted. 
The  government's  promissory  note,  payable  on  demand, 
is,  if  it  be  not  a  legal  tender,  nothing  more  than  an 
evidence  of  indebtedness  on  the  part  of  the  govern- 
ment, and  as  such  assignable  by  the  original  creditor  to 
other  persons,  and  its  issue  is  as  plainly  authorized  by 
he  power  to  borrow  money  as  is  the  issue  of  govern- 
ment bonds ;  but  when  the  government  undertakes  to 
impress  on  that  promissory  note  the  quality  of  a  legal 
tender  in  satisfaction  of  the  antecedently  contracted 

1  Per  Marshall,  C.  J.,  McCulloch  v.  Maryland,  4  Wheat.  407. 

2  4  Am.  Law  Rev.  768:  1  Kent's  Com.  254,  Ed.  1873. 


LEGAL   TENDER.  15 

debts  of  those  who  are  not  parties  to  the  transaction  of 
borrowing  between  the  government  and  its  original 
creditor,  the  note  is  made  to  be  something  more  than  an 
evidence  of  indebtedness,  and  it  then  becomes  "  money," 
for  it  not  only  circulates  in  fact,  but  it  performs  those 
offices  which  "  money  "  only  can  perform ;  that  is,  it 
not  only  serves  as  a  medium  of  exchange  and  a  measure 
of  values,  but  it  also  is  the  efficient  means  of  a  com- 
pulsory legal  discharge  of  a  debt.  Various  things  that 
are  not  "  money  "  may  perform  one  or  more  of  these 
offices,  but  it  is  "  money "  alone  which  can  discharge 
all  of  them.  Now,  if  the  government,  when  it  bor- 
rows, or  pays  its  debts,  or  makes  its  purchases,  can  give 
to  its  creditor  that  which  has  no  intrinsic  value,  but 
which  that  creditor  can  compel  his  creditor  to  receive 
in  satisfaction  of  an  antecedent  debt,  it  is  somewhat 
difficult  to  see  how  or  why  the  delivery  of  that  thing 
of  no  intrinsic  value  as  the  equivalent  for  materials  pur- 
chased by  the  government,  or  money  loaned  to  the 
government,  or  as  the  legal  discharge  of  a  debt  due  by 
the  government,  will  not  greatly  facilitate  borrowing, 
purchases,  and  payments  by  the  government.  From 
this  it  would  seem  to  follow  that  the  issue  of  legal  ten- 
der notes,  however  unwise  in  statesmanship,  is  a  plainly 
adapted  means  to  the  end  of  raising  and  supporting 
armies,  providing  and  maintaining  a  navy,  borrowing 
money,  and  paying  the  debts  of  the  United  States. 
The  use  of  that  means  is  not  prohibited  expressly. 

It  is  not  prohibited  impliedly,  unless  the  implication 
of  a  prohibition  can  be  deduced  from  the  specific  grant 
of  power  to  "  coin  money."  If  that  grant  means  that 
Congress  may  issue  a  metallic  currency  and  make  that 
a  legal  tender,  certainly  the  force  of  the  maxim,  ex- 
pressio  unius  est  exclusio  alterim,  converts  that  limited 
grant  of  power  over  the  curren^^L^utoan  implied  pro- 


16  IMPLIED    POWERS. 

hibition  of  the  impression  of  the  legal  tender  quality 
on  notes.  If,  on  the  other  hand,  the  word  "  money/7 
in  the  constitutional  sense  of  the  term,  means  only,  as 
Professor  Thayer  has  argued,1  a  medium  of  exchange 
which  does  not  involve  the  idea  of  a  legal  tender,  the 
power  to  coin  money  does  not  expressly  authorize  the 
issue  of  a  metallic  legal  tender,  nor  does  it  impliedly 
forbid  the  issue  of  a  paper  legal  tender.  Of  course,  the 
same  conclusion  must  be  reached,  if  the  word  "  coin" 
does  not  mean  to  stamp  metal  discs,  but  means  only  to 
issue  a  currency  of  any  material.  In  support  of  that 
view,  Mr.  McMurtrie  has  said,2  that  the  Constitution 
was  framed  by  men  who  were  versed  in  the  technical 
terms  of  English  law,  and  that  in  English  law  the  phrase 
"to  coin  money"  meant  to  issue  a  currency  of  any  mate- 
rial and  to  give  to  that  currency  all  the  qualities  of  a  cir- 
culating medium.  But  it  is  settled  that  the  Constitution 
is  to  be  judicially  construed  as  the  act,  not  of  the  con- 
vention which  framed  it,  but  of  the  people  who  ratified 
it,  and  that  in  construing  it,  its  words  are  to  be  read  in 
their  natural  sense,3  departing  from  and  varying  by 
construction  the  natural  meaning  of  the  words  only 
where  different  clauses  of  the  instrument  bear  upon 
each  other  and  would  conflict,  unless  the  words  were 
construed  otherwise  than  by  their  natural  and  common 
import.4  Applying  to  the  Constitution  these  principles 
of  construction,  there  is  certainly  some  force  in  the  view 
that  the  power  to  "  coin  money,"  whatever  it  may  have 
been  intended  to  accomplish,  expressly  authorizes  the 
issue  of  metallic  "  money,"  and  therefore  impliedly 
forbids  the  issue  of  paper  "money."  In  view  of  these 

1  1  Harvard  Law  Eev.  83. 

2  Observations  on  Mr.  George  Bancroft's  Plea  for  the  Constitution,  pp.  20 
et  seq. 

3  Gibbons  v.  Ogden,  9  Wheat.  1. 

*  Sturges  v.  Crowninshield,  4  Wheat.  122. 


LEGAL    TENDER.  17 

conflicting  arguments,  it  may  well  be  said  that,  on 
principle  and  apart  from  authority,  the  legal  tender 
question  is  one  of  difficulty,  on  which  there  may  well 
be  an  honest  difference  of  opinion,  without  liability,  on 
the  one  side  or  the  other,  to  a  just  imputation  of  either 
ignorance  of  constitutional  law  or  moral  perversity. 
The  power  of  Congress  to  create  a  national  bank  was 
quite  as  bitterly  controverted  in  the  early  days  of  the 
Republic,  yet  few,  if  any,  now  doubt  that  the  power 
exists. 

13.  If  Congress  have  an  implied  power  to  issue  a  le- 
gal tender  currency  as  a  means  to  the  end  of  borrowing 
money  for  and  paying  the  debts  of  the  United  States, 
and  if  the  express  power  to  "  coin  money "  is  to  be 
construed  as  an  authorization  of  the  issue  of  a  metallic 
legal  tender  currency  and  an  implied  prohibition  of 
the  issue  of  a  paper  legal  tender  currency,  it  inevitably 
follows  that  the  Legal  Tender  cases  are  an  authority  for 
the  proposition,  of  possibly  wide  application,  that  no 
express  grant  of  power  to  the  United  States  to  accom- 
plish any  end  in  any  definite  way  can  avail  to  prevent 
the  attainment  of  that  end  in  any  other  way,  if  permis- 
sion to  use  that  other  way  be  implied  in  and  deducible 
from  any  other  express  grant  of  powers. 


CHAPTER  III. 

TAXATION. 

14.  Taxation  defined  and  limited. 

15.  Taxation  by  the  United  States. 

16.  Direct  taxation. 

17.  The  requirement  of  uniformity. 

18.  Exemption  of  state  agencies  from  taxation  by  the  United  States. 

19.  Charges  which  are  not  taxes  exempt  from  constitutional  restraints. 

20.  Taxation  by  the  states. 

21.  The  expressed  restraints  upon  state  taxation. 

22.  The  implied  restraint  upon  state  taxation  resulting  from  the  federal 

supremacy. 

23.  Taxation  of  national  banks. 

24.  State  taxation  as  affected  by  the  prohibition  of  the  impairment  of 

the  obligation  of  contracts. 

25.  State  taxation  as  affected  by  the  grant  to  Congress  of  the  power  of 

regulating  commerce. 

14.  Taxation  is  the  compulsory  exaction  by  a  govern- 
ment, in  the  exercise  of  its  sovereignty,  of  a  payment 
of  money  or  surrender  of  property  by  any  person,  natu- 
ral or  corporate,  who,  or  whose  property  so  taxed,  is 
subject  to  the  sovereign  power  of  that  government.1 
Taxation  operates  upon  real  property  and  upon  tangible 
personal  property  by  reason  of  its  situs  or  presence 
within  the  territory  of  the  taxing  power.2  It  operates 
upon  choses  in  action  by  reason  of  the  subjection 
of  the  owner  thereof  to  the  jurisdiction  of  the  gov- 
ernment imposing  the  tax.3  Every  possible  exac- 
tion of  money  or  property  by  a  government  from 

1  The  State  Freight  Tax,  15  Wall.  277  ;  McCulloch  v.  Maryland,  4  Wheat. 
420. 

2  Mager  v.  Grima,  8  How.  490 ;  Coe  v.  Errol,  116  U.  S.  557. 

3  Bonaparte  v.  Tax  Court,  104  U.  S.  592 ;   Kirtland  v.  Hotchkiss,  100  U.  S. 
491 ;  Nevada  Bank  v.  Sedgwick,  104  U.  S.  111. 


CHARGES    NOT    TAXES.  19 

those  who  are  subject  to  its  jurisdiction  is  not  a  tax; 
thus,  a  duty  of  so  much  per  passenger,  imposed  by  the 
United  States  in  the  exercise  of  the  power  to  regulate 
commerce  on  owners  of  vessels  bringing  passengers 
from  foreign  ports  into  ports  of  the  United  States,  in 
order  to  raise  a  fund  to  mitigate  the  evils  incident  to 
immigration,  is  "  not  a  tax  or  duty  within  the  meaning 
of  the  Constitution  j"1  for,  as  Miller,  J.,  said  in  the  judg- 
ment in  that  cause,2  "  the  money  thus  raised,  though 
paid  into  the  treasury,  is  appropriated  in  advance  to  the 
uses  of  the  statute,  and  does  not  go  to  the  general  sup- 
port of  tha  government.  It  constitutes  a  fund  raised 
from  those  who  are  engaged  in  the  transportation  of 
tli)33  passengers,  and  who  make  profit  out  of  it,  for  the 
temporary  care  of  the  passengers  whom  they  bring 
a:n:wg  us  and  for  the  protection  of  the  citizens  among 
wiiom  they  are  landed."  On  the  same  principle  a 
charge  made  by  a  state  for  facilities  furnished  by  it, 
directly  or  indirectly,  for  the  movement  of  commerce, 
in  the  form  of  improved  water  ways,3  or  wharves,4  or 
railways,5  or  a  charge  for  quarantine  examination,  can- 
not be  said  to  be  a  tax.6  The  power  of  taxation  is 
vested  in  the  legislative  department  of  the  government,7 
but  it  may  be  delegated  by  states  to  political  subdivi- 
sions, such  as  counties  and  municipalities,8  and  a  state 

1  The  Head  Money  Cases,  112  U.  8.  580. 

2  p.  595. 

3  Huse  v.  Glover,  119  U.  S.  543  ;  Sands  v.  M.  R.  Improvement  Co.,  123  id. 
238. 

*  Packet  Co.  v.  Keokuk,  95  U.  S.  80;  Packet  Co.  v.  St.  Louis,  100  id.  423  ; 
Vicksburg  r.  Tobin,  id.  430;  Packet  Co.  r.  Cattlesburg,  105  id.  559  ;  Trans- 
portation Co.  v.  Parkersburg,  107  id.  69;  O.  Packet  Co.  v.  Aitken,  121 
id.  444. 

5  B.  &  O.  R.  R.  v.  Maryland,  21  Wall.  456. 

6  Morgan  v.  Louisiana,  118  U.  S.  455. 

7  Merriwether  v.  Garret,  102  U.  S.  472. 

8  Gil  man  v.  Sheboygan,  2  Bl.  510  ;   United  States  v.  New  Orleans,   98 
U.  S.  381. 


20  TAXATION. 

may  determine  the  bounds  of  a  municipality  and  pre- 
scribe its  rate  of  taxation.1  By  whomsoever  exercised, 
or  to  whomsoever  delegated,  the  power  can  only  be 
exercised  for  public  purposes.  Taxes,  therefore,  can- 
riot  be  imposed  in  aid  of  enterprises  strictly  private, 
such  as  the  establishment  of  manufactories2  or  of 
private  grist  mills  ;3  but  when  the  purpose  is  public, 
though  not  directly  connected  with  the  administration 
of  government,  taxes  may  rightfully  be  laid  to  aid  in 
its  accomplishment,  as  in  the  cases  of  state  reform 
schools  ;4  grist  mills,  required  by  statute  to  grind  for 
all  customers  on  payment  of  certain  tolls  ;5  the  improve- 
ments of  water  powers  of  rivers  for  general  purposes  ;6 
the  payment  of  bounties  to  volunteer  soldiers  in  time  of 
war;7  the  establishment  of  railways.8  When  bonds, 
though  issued  in  aid  of  private  purposes,  on  their  face 
appear  to  have  been  issued  for  public  purposes,  they  are 
valid  and  enforcible  in  the  hands  of  bona  fide  holders 
for  value  and  without  notice.9 

15.  The  power  of  taxation  vested  in  the  United  States 
is  coextensive  with  the  territory  of  the  United  States, 
and  it  is  operative  in  the  District  of  Columbia,10  in  the 
territories,  and,  to  the  extent  of  the  constitutional  grant, 
in  all  of  the  states. 


1  Kelly  v.  Pittsburgh,  104  U.  S.  78. 

2  Loan  Association  v.  Topeka,  20   Wall.  655  ;  Parkersburg  v.  Brown,  106 
U.  S.  487  ;  Cole  v.  La  Grange,  1 13  id.  1. 

8  Osbornev.  County  of  Adams,  106  U.  S.  181, 109  id.  I. 
*  County  of  Livingston  v.  Darlington,  101  U.  S.  407. 

5  Burlington  v.  Beasley,  94  U.  S  310. 

6  Blair  v.  Cuming  County.,  Ill  U.  S.  363. 

1  Middleton  v.  Mtillica  Township,  112  U.  S.  433. 

8  Rogers  v.    Burlington,    3  Wall.   654;  Queensbury   v.  Culver,  19   id.  83  ; 
Taylor  v.  Ypsilanti,  105  U.  S.  60 ;  Olcott  v.  The  Supervisors,  16  Wall.  678 ; 
R.B.v.Otoe,&&667. 

9  Hackett  v.  Ottawa,  99  U.  S.  86 ;  Ottawa  v.  National   Bank,   105  id.  343 ; 
Ottawa  v.  Carey,  108  id.  110,  118. 

10  Loughborough  v.  Blake,  5  Wheat.  317. 


FEDERAL   TAXATION.  21 

Saction  8  of  article  I  of  the  Constitution  declares 
that  "  the  Congress  shall  have  power  to  lay  and  collect 
taxes,  duties,  imposts,  and  excises,  to  pay  the  debts  and 
provide  for  the  common  defense  and  general  welfare  of 
the  United  States ;  but  all  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States."  At 
one  period  in  the  history  of  the  country  political  parties 
were  at  issue  as  to  the  construction  to  be  given  to 
this  section  of  the  Constitution,  the  Federalists  con- 
tending that  the  section  granted  in  express  terms  three 
substantive  and  independent  powers,  namely,  (1)  to  lay 
and  collect  taxes,  duties,  imposts,  and  excises,  (2)  to 
pay  the  debts,  and  (3)  to  provide  for  the  common 
defense  and  general  welfare  of  the  United  States ;  and 
the  Democrats  asserting  that  the  section  granted  but 
one  substantive  power,  that  to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  and  limited  the  exercise  of 
that  power  to  the  purpose  of  paying  the  debts  and  pro- 
viding for  the  common  defense  and  general  welfare  of 
the  United  States.  The  Federalist  view  was  open  to 
the  objection  that  a  power  to  legislate  for  the  common 
defense  and  general  welfare  of  the  United  States  would 
authorize  Congress  to  do  anything  and  everything,  and 
would  render  superfluous  the  delegation  of  other 
express  powers  of  legislation  in  the  same  section  ;  but 
the  Democratic  view,  however  sound  in  theory,  could 
never  be  judicially  affirmed,  for  as  Congress  has  admit- 
tedly some  power  of  taxation,  a  court,  looking,  as  it  is 
bound  to  look,  not  at  the  question  of  expediency  but 
solely  at  the  question  of  power,  could  never  determine 
an  act  of  Congress  imposing  a  tax  to  be  unconstitutional 
because  it  was  intended  for  some  purpose  other  than 
that  of  paying  the  debts  and  providing  for  the  common 
defense  and  general  welfare  of  the  United  States.  That 
restraint,  therefore,  upon  the  congressional  power  of 


22  DIRECT   TAXES. 

taxation,  if  it  be  a  restraint,  is  of  moral,  ana  not  of  legal, 
sanction. 

16.  Section  9  of  article  I  of  the  Constitution  declares 
that,  "no  capitation,  or  other  direct  tax,  shall  be  laid, 
unless  in  proportion  to  the  census  or  enumeration  here- 
inbefore  directed    to  be  taken."     "  Direct "  taxes  are 
capitation  taxes,  and  taxes  on  real  property,  as,  for  in- 
stance, the  tax  imposed  on  land  by  the  Act  of  6  Febru- 
ary, 1863.1     Neither  taxes  laid  on  "carriages  for  the 
conveyance    of    persons,"2   nor  on   personal    incomes,3 
nor  on  distilled  spirits,4  nor  succession  duties  on   the 
"  devolution  of  title  to  real  estate/'0  nor  taxes  on  the 
notes  of  state  banks  paid  out  by  national  banking  as- 
sociations,6 nor  taxes  on  the  receipts  of  insurance  com- 
panies from  premiums  and  assessments,7  are  direct  taxes, 
but  all  such  taxes  are  imposts  or  excises.     The  require- 
ment that  direct  taxes  must  be  laid  "  in  proportion  to 
the  census  or  enumeration  "  is  not  violated  by  the  statu- 
tory imposition  of  a  penalty  for  non-payment  of  the 
tax.8 

17.  The  only  constitutional  requirement  with  regard 
to  imposts  and  excises  is,  that  they  "  shall  be  uniform 
throughout  the  United  States,"  and  that  requirement  is 
satisfied,  when  the  tax  operates  with  the  same  effect  in 
all  places  where  the  subject  of  taxation  is  found,  though 
that  subject  be  not  equally  distributed  in  all  parts  of  the 
United  States.9 

18.  The   United    States   cannot,  however,  tax    the 

1  12.  Stat.  640. 

2  Hylton  v.  U.  S.,  3  Dall.  171. 

3  Springer  v.  U.  S.,  102  U.  S.  586. 

4  U.  S.  v.  Singer,  15  Wall.  111. 

5  Scholey  v.  Reed,  23  Wall.  331. 

6  Veazie  Bank  v.  Fenno,  8  Wall.  533  ;  National  Bank  v.  U.  S.,  101  U.  S.  1. 

7  Pacific  Insurance  Company  v.  Soule,  7  Wall.  433. 

8  D3  Treville  v.  Smalls,  98  U.  S  517. 

a  The  Head  Money  Cases,  112  U.  S.  530. 


STATE   TAXATION.  23 

agencies  of  a  state,  as,  for  instance,  the  salary  of  a 
judicial  officer  of  a  state1  nor  the  revenue  of  a  munici- 
pal corporation  derived  from  its  loan  of  capital  to  a 
railway.2 

19.  The  duty  on  the  transportation  of  passengers  by 
sea   from   foreign    countries   imposed    by   the  United 
States  in  the  exercise  of  the  power  of  regulating  com- 
merce, not   being  in  its  nature  a  tax,  is  not  subject  to 
the  constitutional   restrictions  on  the   exercise  of  the 
power  of  taxation,3  and  the  same  view  has  been  taken 
of  the  tax  imposed  by  the  United  States  on  the  circulat- 
ing notes  of  state  banks  for  the  purpose  of  preventing 
the  circulation  of  any  other  than  national  bank  notes.4 

20.  A  state  may,  so  far  as  it  is  not  restrained  by  the 
Constitution,  tax  all  persons,  natural  or  corporate,  and  all 
property,  real  or  personal,  within  its  territory  and  sub- 
ject to  its  sovereignty,  and  may  regulate,  in  the  exercise 
of  legislative  discretion,  the  manner  of  levying  and  col- 
lecting its  taxes,5  and  the  United  States  cannot,  either 
by  legislative  or  judicial  action,  afford  any  relief  against 
"  state  taxation,  however  unjust,  oppressive,  or  onerous," 
so  long  as  that  taxation  "  does  not  entrench  upon  the 
legitimate  authority  of  the  Union,  or  violate  any  right 
recognized  or  secured  by  the  Constitution  of  the  United 
States."6 

Under  the  general  rule  which  permits  a  government 
to  tax  all  persons  and  property  within  its  jurisdiction, 
the  states  may  impose  a  succession  duty  on  the  devolu- 

The  Collector  v.  Day,  11  Wall.  113. 

U.  S.  v.  B.  &  O.  R.  R.,  17  Wall.  322. 

The  Head  Money  Cases,  112  U.S.  580. 

Veazie  Bank  v.  Fenno,  8  Wall.  533. 

Witherspoon  v.  Duncan,  4  Wall.  210. 

Providence  Bank  v.  Billings,  4  Pet.  563 ;  St.  Louis  v.  Ferry  Co.,  11  Wall. 
423;  The  State  Tax  on  Foreign  Held  Bonds,  15  id.  300;  Kirtland  v.Hotchkiss 
100  U.  S.  491,  498  ;  Memphis  Gas  Co.  v.  Shelby  County,  109  id.  398 ;  Car- 
penter v.  Pennsylvania,  17  How.  456. 


24  STATE   TAXATION. 

tion  of  title  to  real  estate  from  their  citizens  to  alien 
non-residents  ;x  they  may  tax  goods  and  chattels  which 
are  actually  within  the  state,  when  assessed  for  taxation, 
though  owned  by  a  non-resident;2  and,  for  purposes  of 
taxation,  the  situs  of  a  debt  being  the  residence  of  the 
creditor,  the  state  may  include  in  the  taxable  property 
of  a  resident  so  much  of  the  registered  public  debt  of 
another  state  as  such  resident  may  hold,  although  the 
debtor  state  may  either  exempt  it  from  taxation  or 
actually  tax  it.3  On  the  same  principle  a  state  may 
tax  her  resident  citizens  for  debts  due  to  them  by  a 
non-resident  and  secured  by  his  bond  and  also  by  his 
deed  of  trust  or  mortgage  of  real  estate  situated  in 
another  state.4  As  until  the  period  of  distribution 
arrives,  the  law  of  a  decedent's  domicile  attaches  to  his 
personal  property,  that  property  is  subject  to  a  state 
collateral  inheritance  tax,  though  bequeathed  by  his 
will  to  non-resident  legatees.5  But  the  laws  of  a  state 
can  have  no  extra  territorial  effect,  and,  therefore,  a 
state  cannot,  as  a  means  of  taxing  corporate  bonds 
held  by  non-residents,  authorize  the  corporation  to 
retain  from  the  interest  due  on  its  bonds  the  amount  of 
the  tax.6  Nor  can  a  state  tax  in  the  hands  of  a  non- 
resident holder  corporate  bonds  issued  under  a  mort- 
gage of  a  railway  formed  by  the  consolidation  of  cor- 
porations, incorporated  by  the  state,  and  other  corpora- 
tions incorporated  by  another  state,  and  encumbering 
by  a  consolidated  and  non-severable  lien  property 
which  is  not  within  the  jurisdiction  of  the  taxing  state.7 

1  Mager  v.  Grima,  8  How.  490. 

2  Coe  v.  Errol,  116  U.  S.  517. 

3  Bonaparte  v.  Tax  Court,  104  U.  S.  592. 
*  Kirtland  v.  Hotchkiss,  100  U.  S.  491. 

6  Carpenter  v.  Pennsylvania,  17  How.  456. 

6  Case  of  the  State  Tax  on  Foreign  Held  Bonds,  15  Wall.  301. 

7  K.  K.  v.  Jackson,  7  Wall.  262. 


IMPLIED    RESTRAINTS.  25 

21.  Section  10  of  article  I  of  the  Constitution  de- 
clares, that  "no  state  shall,  without  the  consent  of  the 
Congress,  lay  any   imposts   or   duties  on  imports   or 
exports,  except  what  may  be  absolutely  necessary  for 
executing  its  inspection  laws ;  and  the  net  produce  of 
all  duties  and  imposts,  laid  by  any  state  on  imports  or 
exports,  shall  be  for  the  use  of  the  treasury  of  the 
United  States;  and  all  such  laws  shall  be  subject  to  the 
revision  and  control  of  the  Congress.     No  state  shall, 
without  the  consent  of  the  Congress,  lay  any  duty  of  ton- 
nage."    The  nature  and  effect  of  the  restrictions  upon 
the  taxing  power  of  the  states  imposed  by  these  consti- 
tutional provisions  are  more   fully  discussed  in  Chapter 
IV,  and  it  is  sufficient  to  say  in  this  connection  that  a 
state  cannot  require  importers  of  foreign  goods  by  the 
bale  or  package  and  wholesale  vendors  of  such  goods 
to   pay  a  license  fee  ;x  nor  can   a  state  impose  an  ad 
valorem  tax  on  imported  goods  remaining  in  their  origi- 
nal cases  in  the  hands  of  the  importer;2  nor  can  a 
state  tax  an  auctioneers'  sales  of  imported  goods  for 
account  of  the  importers;3    but  a  state  may  prohibit 
the  exportation  of  tobacco  grown  within  its  territory, 
save  after  inspection  and  on  payment  of  a  tax.4     A 
state  cannot  tax  ships  upon  their  tonnage.5 

22.  The  supremacy  of  the  United  States  under  the 
Constitution  impliedly  limits  to  some  extent  the  exer- 
cise by  the  states  of  the  power  of  taxation.  Thus,  a  state 
can  not  tax  the  official  salary  of  an  officer  of  the  United 
States,  as,  for  instance,  an  officer  in  the  revenue  marine 

1  Brown  v.  Maryland,  12  Wheat.  419. 

2  Low  v.  Austin,  13  Wall  29. 

3  Cook  v.  Pennsylvania,  97  U.  8.  566. 

4  Turner  r.  Maryland,  107  U.  S.  38. 

5  State  Tonnage  Tax  Cases,  12  Wall.  212;  Steamship  Co.  v.  Board  of  War- 
dens, 6  Wall.  31  ;  Pectev.  Morgan,  19  id.  581 ;  Cannon  v.  New  Orleans,  20  id. 
577;  I.  S.  S.  Co.  v.  Tinker,  94  U.  S.  238. 


26  STATE   TAXATION. 

service  j1  nor  can  a  state  tax  a  telegraph  company  upon 
m  jssages  sent  by  officers  of  the  United  States  on  public 
business  ;2  nor  can  a  state  authorize  municipal  taxation 
of  the  bonds  issued  by  the  government  of  the  United 
States  for  money  loaned  to  it  ;3  nor  can  a  state  tax  the 
notes  of  the  United  States  ;4  nor  can  a  state  tax  so 
much  of  the  capital  of  a  state  bank  as  is  invested  in 
the  bonds  of  the  United  States,  that  capital  being  as- 
sessed either  at  its  actual  value,0  or  at  a  valuation  equal 
to  the  amount  paid  in,  or  secured  to  be  paid  in.6  But 
a  court  will  not  aid,  by  the  exercise  of  its  equitable 
powers,  a  party  who,  for  the  purpose  of  evading  state 
taxation  of  his  money  on  deposit,  makes  a  temporary 
investment  of  that  money  in  the  notes  of  the  United 
States.7  A  corporation  claiming  an  exemption  from 
state  taxation  by  reason  of  the  investment  of  its  surplus 
funds  in  the  legal  tender  notes  of  the  United  States  has, 
of  course,  the  burden  of  proving '  the  fact  on  which  it 
rests  its  claim  for  exemption.8  A  state  tax  of  a  cer- 
tain percentage  of  the  total  amount  of  the  deposits  on 
a  given  day,9  or  of  the  average  amount  of  the  deposits 
for  a  fixed  period10  of  a  saving  fund  society  chartered 
by  the  state,  and  a  state  tax  of  a  certain  percentage 
upon  the  excess  of  the  market  value  of  the  shares  of 
the  capital  of  a  corporation  chartered  by  a  state  over 
and  above  the  value  of  its  real  estate  and  machinery11 


1  Dobbins  v.  The  Commissioners  of  Erie  Co.,  16  Pet.  435. 

2  Telegraph  Co.  v.  Texas,  105  U.  S.  460. 

3  Weston  v.  Charleston,  2  Pet.  449  ;  The  Banks  v.  The  Mayor,  7  Wall.  16. 

4  Bank  v.  Supervisors,  7  Wall.  26.  , 
6  The  People  v.  The  Commissioners  of  Taxes,  2  Black  620. 

6  The  Bank  Tax  Case,  2  Wall.  200. 

7  Mitchell  v.  The  Commissioners,  91  U.  S.  206. 

8  C.  &  B.  Co.  v.  New  Orleans,  99  U.  S.  97. 

9  Society  for  Savings  v.  Coite,  6  Wall.  594. 

10  Provident  Institution  v.  Massachusetts,  6  Wall.  611. 

11  Hamilton  Co.  v.  Massachusetts,  6  Wall.  632. 


PUBLIC    LANDS.  27 

are  in  each  case,  a  tax  on  the  franchise  and  not  on  the 
property  of  the  corporation,  and  the  corporation  cannot 
claim  exemption  from  such  taxation  by  reason  of  the 
investment,  in  the  case  of  the  saving  funds,  of  their 
deposits,  and  in  the  case  of  the  other  corporations,  of 
their  capital  and  assets  in  the  bonds  of  the  United 
States.  A  state  cannot  tax  lands  held  in  severalty  by 
members  of  an  Indian  tribe  and  protected  by  treaties 
between  the  United  States  and  the  tribe.1  A  state 
cannot  tax  public  lands  of  the  United  States,  though 
granted  to  a  railway,  but  for  which  patents  have  not 
been  issued,  nor  costs  of  survey  paid,  but  from  and 
after  the  vesting  of  an  equitable  title  in  any  person  the 
lands  are  subject  to  state  taxation,  though  the  costs  of 
survey  have  not  been  paid.2  Lands  granted  by  act  of 
Congress  to  a  state,  to  be  held  by  it  to  aid  in  the  con- 
struction of  a  railway,  though  not  taxable  by  the  state 
when  held  by  it  as  trustee,  are  taxable  by  it  after  their 
conveyance  to  the  railway,3  and,  of  course,  in  the  case 
of  lands  ceded  by  a  state  to  the  United  States  for  the 
construction  of  a  railway,  with  an  express  reservation 
of  the  state's  right  of  taxation,  the  state  may  lawfully 
exercise  that  right,4  but  land  within  a  state,  which, 
under  laws  of  Congress  for  the  collection  of  taxes  due 
to  the  United  States,  has  been  sold  for  non-payment  of 
such  taxes,  and  at  the  sale  thereof  purchased  by  the 
United  States  and  afterwards  sold  by  the  United  States 
to  a  third  party,  or  redeemed  by  the  owner,  is  exempt 
from  state  taxation  during  the  period  of  federal  owner- 
ship thereof.5  Although  the  title  to  land  remain  in 

1  The  Kansas  Indians,  5  Wall.  737 ;  The  New  York  Indians,  ibid.  761. 

2  U.  P.  R.  K.  v.  McShane,  22  Wall.  444;  K.  R.  v.  Prescott,  16  Wall.  603  , 
Carroll  v.  Safford,  3  How.  441. 

3  Tucker  v.  Ferguson,  22  Wall.  527. 

4  F.  L.  R.  R.  v.  Lowe,  114  U.  S.  525. 

6  Van  Brocklin  v.  Tennessee,  117  U.  S.  151. 


28  STATE   TAXATION. 

the  United  State,  ore  dug  therefrom  under  a  mineral 
claim  is,  as  the  personal  property  of  the  claimant,  sub- 
ject to  state  taxation.1  The  exemption  of  federal 
agencies  from  state  taxation  is  dependent,  not  on  the 
fact  of  the  agency,  nor  on  the  character  of  the  agents, 
nor  on  the  mode  of  their  appointment,  but  on  the  effect 
of  state  interference  in  depriving  the  agent  of  power  to 
serve  the  government  of  the  United  States,  or  in 
hindering  the  agent  in  the  efficient  exercise  of  that 
power.2  A  state  may,  therefore,  tax  the  property,  real 
and  personal,  of  a  railroad,  which  has  been  chartered 
by  act  of  Congress-,  is  subject  to  a  lien  securing  its  debt 
to  the  United  States,  and  is  used  as  a  federal  agency  for 
the  transportation  of  mails,  soldiers,  government  .sup- 
plies, and  munitions  of  war;3  and,  it  would  seem,  on 
the  principle  of  that  case,  that  a  state  may  tax  the 
property  of  any  federal  agency,  wherever  such  taxation 
does  not  impair  the  efficiency  of  the  agency  in  the 
performance  of  its  duty  to  the  government  of  the 
United  States.  The  federal  supremacy  forbids  a  state 
to  so  tax  the  transit  of  passengers  through  the  state  by 
the  ordinary  modes  of  travel,  as  to  impede  their  ap- 
proach to  the  seat  of  government  of  the  United  States, 
the  ports  of  entry  'through  which  commerce  is  con- 
ducted, and  the  various  federal  offices  in  the  states.4 
The  supremacy  of  the  United  States  does  not  involve 
an  exemption  from  state  taxation  of  property  which 
has  been  acquired  by  the  exercise  of  an  exclusive  privi- 
lege granted  by  the  United  States,  when  there  is  no  re- 
lation of  agency  between  the  United  States  and  the 
grantee,  thus  letters  patent,  granted  by  the  United 

1  Forbes  v.  Gracey,  94  U.  S.  762. 

2  U.  P.  R.  R.  v.  Peniston,  18   Wall.  5  ;  National  Bank  v.  The  Common- 
wealth, 9  id.  353 ;  Thompson  v.  P.  R.  R.,  id.  579. 

3  U.  P.  R.  R.  v.  Peniston,  18  Wall.  5. 

*  Crandall  v.  State  of  Nevada,  6  Wall.  35. 


NATIONAL    BANKS.  29 

States,  do  not  exempt  from  state  taxation  the  tangible 
property  in  which  the  invention  or  discovery  is  em- 
bodied.1 Nor  does  a  license  granted,  on  payment  of 
a  license  fee,  by  the  United  States  under  its  Internal 
Revenue  Statutes  to  a  wholesale  liquor  dealer  in  a 
state  exempt  the  dealer,  or  his  business,  or  his  goods 
from  state  control,  regulation,  or  taxation.2 

23.  A  state  cannot  tax  the  operations  of  banks  in- 
corporated by  the  government  of  the  United  States  as 
fiscal  agencies.3  Nor  can  a  state  tax  the  assets  of  an 
insolvent  national  bank  in  the  hands  of  a  receiver 
appointed  under  the  provisions  of  the  national  banking 
laws.'1.  Of  course,  when  Congress  licenses  state  taxa- 
tion of  agencies  of  the  government  of  the  United  States, 
such  taxation  is  permissible  within  the  limits  imposed 
by  the  terms  of  the  license ;  5  thus  in  the  case  of 
national  banks,  state  taxation  is  by  the  41st  section  of 
the  Act  of  3  June,  1864,6  permitted  as  to  the  shares  in 
any  bank,  when  "included  in  the  valuation  of  the  per- 
sonal property  of  the  owner  or  holder  of  such  shares, 
in  assessing  taxes  imposed  by  authority  of  the  state 
within  which  the  association  is  located,"  ....  "sub- 
ject only  to  the  restrictions,  that  the  taxation  shall  not 
be  at  a  greater  rate  than  is  assessed  upon  other  moneyed 
capital  in  the  hands  of  individual  citizens  of  such  state, 
and  that  the  shares  of  any  national  banking  association 
owned  by  non-residents  of  any  state  shall  be  taxed  in 
the  city  or  town  where  the  bank  is  located,  and  not 

1  Webber  v.  Virginia,  103  U.  S.  344. 

2  McGruire  v.  The  Commonwealth,  3  Wall.  387  ;   Pervear  v.  The  Common- 
wealth, 5  id.  475. 

3  McCulloch  v.  The  State  of  Maryland,  4  Wheat.    316;   Osborne  v.  The 
Bank  of  the  U.  S.,  9  id.  738. 

*  Rosenblatt  v.  Johnston,  104  U.  S.  462. 

5  Van  Allen  v.  The  Assessors,  3  Wall.  573 ;   People  v.  The  Commissioners, 
4  id.  244. 

6  15  Stat.  34,  Eev.  Stat.  Sec.  5219. 


30  STATE   TAXATION. 

elsewhere.  The  states  may,  therefore,  tax  sharehold- 
ers in  national  banks  within  the  limits  of  this  license,1 
without  regard  to  the  investment  of  all  or  any  part  of 
the  capital  of  the  banks  in  United  States  securities. 
The  National  Bank  Act  of  3  June,  1864,2  had  imposed 
a  further  restriction  on  state  taxation  of  national  bank 
shares,  declaring  that  such  tax  "  shall  not  exceed  the 
rate  imposed  upon  the  shares  in  any  of  the  banks 
organized  under  the  authority  of  the  state,"  but  in  the 
re-enactment  of  this  statute  in  1868,3  and  in  the  Re- 
vised Statutes,1  this  condition  was  omitted.  Under  the 
Act  of  18(54  it  was  held  that  a  state  could  not  tax  shares 
in  national  banks,  when  it  taxed  the  capital  of  state 
banks,  exempting  so  much  thereof  as  was  invested  in 
the  bonds  of  the  United  States,  and  failed  to  tax  the 
shares  of  state  banks.5  It  was  also  held  that  the  limi- 
tation upon  disparity  of  state  taxation  imposed  by  the 
Act  of  181)4  is  not  overstepped  by  a  state  which,  having 
only  two  banks  of  issue  and  circulation,  and  having  by 
contract  bound  itself  not  to  tax  these  banks  beyond  a 
certain  limit,  but  having  numerous  banks  of  deposit, 
which  do  not  issue  circulation,  taxes  generally  and 
equally  all  shares  of  stock  in  banks  and  incorporated 
companies  doing  business  in  the  state.6  The  terms  of 
section  5219  of  the  Revised  Statutes  show  clearly  that 
Congress  did  not  intend  to  curtail  the  taxing  power  of 
the  states  over  national  bank  shares  as  entities  distinct 
from  the  capital  of  the  banks,  and  as  the  property  of 
persons  subject  to  state  jurisdiction,  but  that  it  was  in- 

1  National  Bank  v.  The  Commonwealth,  9  Wall.  353 ;   People  v.  Commis- 
sioners, 4  id.  244 ;  Van  Allen  v.  The  Assessors,  3  id.  573. 

2  13  Stat.  111. 

3  15  Stat.  34. 
*  Sec.  5219. 

5  Van  Allen  v.  The  Assessors,  3  Wall.  57 ;.  Bradley  v.  The  People,  4  id.  459. 

6  Lionberger  v.  House,  9  Wall.  468. 


NATIONAL   BANKS.  31 

tended  to  guard  the  national  banks  against  unfriendly 
discrimination  by  the  states  in  the  exercise  of  that  tax- 
ing power.1  The  phrase  "  moneyed  capital "  includes 
capital  employed  in  national  banks  and  capital  em- 
ployed by  individuals  for  the  making  of  profit  by  its 
use,  but  it  does  not  include  capital  in  the  hands  of  a 
corporation.2  Therefore,  the  exemption  from  state 
taxation  of  some  but  not  all  of  the  moneyed  capital  in 
the  state  is  not  a  discrimination  against  national  bank 
shares  within  the  terms  of  the  license  ;  as,  for  instance, 
in  the  case  of  exemption  of  "all  mortgages,  judgments, 
recognizances,  and  moneys  owing  upon  articles  of  agree- 
ment for  the  sale  of  real  estate;"3  or  of  deposits  in  sav- 
ings banks,  shares  in  trust  companies,  and  shares  in 
other  moneyed  or  stock  corporations  chartered  by  the 
state  and  deriving  an  income  or  profit  from  the  use  of 
their  capital  or  otherwise.4  Nor  is  there  any  inequality 
of  taxation  or  unfriendly  discrimination  as  against 
national  bank  shares,  in  the  exemption  by  a  state  of 
that  which  it  cannot  lawfully  tax,  such  as,  shares 
owned  by  its  residents  in  the  capital  stock  of  for- 
eign corporations,5  or  in  the  exemption  of  that  which 
is  not  a  subject  of  taxation  by  the  United  States,  such 
as  the  bonds  of  a  municipal  corporation  created  by  the 
state;6  but  where  a  very  material  part  of  the  other 
moneyed  capital  of  a  state  in  the  hands  of  individual 
citizens  within  the  state  is  exempted  from  state  taxation, 
the  state  cannot  tax  the  shares  of  national  banks.7 


1  Adams  v.  Nashville,  95  U.  S.  19;    Mercantile  Bank  v.  New  York,  121  U. 
S.  138. 

2  Mercantile  Bank  v.  New  York,  121  U.  S.  138. 

3  Hepburn  v.  The  School  Directors,  23  Wall.  480. 

4  Mercantile  Bank  v.  New  York,  121  U.  S.  138. 

5  Mercantile  Bankv.  New  York,  121  U.  S.  138,  162. 

6  Mercantile  Bank  v.  New  York,  121  U.  S.  138,  162. 

7  Boyer  v.  Boyer,  113  U.  S.  689. 


32  STATE   TAXATION. 

State  statutes  taxing  personal  property,  including 
national  bank  shares,  and  permitting  the  party  taxed 
to  deduct  his  just  debts  from  the  valuation  of  his  per- 
sonal property  other  than  national  bank  shares,  tax 
such  shares  at  a  greater  rate  than  other  moneyed  capi- 
tal, and,  therefore,  are  not  effective  under  the  terms  of 
the  license  given  by  Congress  j1  but  in  the  case  of  a 
national  bank  shareholder,  who  has  no  just  debts  to 
deduct,  the  taxing  law  is  valid  and  operative.2  A  state 
may,  under  the  act  of  Congress,  tax  the  shares  of 
a  bank  located  within  its  jurisdiction  without  regard 
to  the  non-resident  or  resident  ownership  of  such 
shares,3  and  the  shares  may  be  assessed  for  purpose  of 
state  taxation  at  their  market  value,  though  that  exceed 
their  par  value.*  But  state  taxation  of  national  bank 
shares  must  be  uniform  and  equal,  and  when  a  system 
of  valuation  for  taxation  purposes  intended  to  operate 
unequally  is  adopted  by  the  state  authorities,  whose 
duty  it  is  to  make  the  assessment,  equity  may  properly 
interfere,  on  payment  of  the  proper  tax,  to  enjoin  the  col- 
lection of  the  illegal  excess.5  But  where  a  state  has  pro- 
vided a  mode  for  the  correction  of  error  in  the  assessment 
of  property  for  purposes  of  taxation,  a  party,  aggrieved 
by  an  over- valuation  of  his  property,  cannot  maintain 
an  action  at  law  to  recover  the  alleged  illegal  excess  of 
taxes  paid  by  him,  for  the  official  action  of  the  revising 
authority  is  judicial  in  character,  and  cannot  be  collat- 
erally impeached.6  A  state  may  lawfully  require  a 

1  People  v.  Weaver,  100  U.  S.  539 ;  Supervisors  v.  Stanley,  105  id.  305 ; 
Hills  v.  Exchange  Bank,  id.  319 ;  Evansville  Bank  v.  Britton,  id.  322. 

2  Supervisors  v.  Stanley,  105  U.  S.  305. 

3  Tappan  v.  M.  N.  Bank,  19  Wall.  490. 

4  Hepburn  v.  The  School  Directors,  23  Wall.  480 ;  People  v.  Commissioners 
of  Taxes,  94  U.  S.  415. 

5  Cummings  v.  M.  National  Bank  of  Toledo,  101  U.  S.  153 :   Pelton  v.  Na- 
tional Bank,  101  U.  S.  143 ;  People  v.  Weaver,  100  U.  S.  539. ' 

6  Stanley  v.  Supervisors,  121  U.  S.  535, 


CONTRACTUAL    EXEMPTION.  33 

national  bank  to  act  as  the  agent  of  the  state  in  collect- 
ing from  the  shareholders  of  the  bank  the  tax  imposed 
by  the  state  within  the  limits  permitted  by  the  act  of 
Congress.1  A  state  may  also,  under  a  penalty  for  his 
non-performance  of  the  duty,  require  a  cashier  of  a 
national  bank  to  furnish  to  the  state  authorities  a  list 
of  the  names  and  respective  holdings  of  the  sharehold- 
ers of  his  bank.2 

24.  The  constitutional  prohibition  of  the  enactment 
by  the  states  of  laws  impairing  the  obligation  of  con- 
tracts affects  to  some  extent  the  exercise  by  the  states 
of  the  power  of  taxation.  While,  as  a  general  rule,  the 
states  may,  in  the  exercise  of  legislative  discretion, 
either  tax  property  or  exempt  it  from  taxation,  yet  con- 
tracts of  exemption  from  state  taxation,  not  in  terms 
contravening  federal3  or  state4  constitutional  prohi- 
bitions, and  contained  in  corporate  charters 5  or  stipu- 
lated by  express  agreement,6  if  supported  by  an  ade- 
quate consideration,  constitute  contracts  so  binding  upon 
the  state,  that  their  obligation  is  not  to  be  permitted  to 
be  impaired  by  a  subsequent  legislative  repeal  of  the 
charter,  or  by  an  imposition  of  a  rate  of  taxation  incon- 
sistent with  the  state's  contract,7  But  there  cannot  be 
implied  from  the  grant  of  a  charter  an  exemption  of 
the  corporate  franchise  or  property  from  state  taxa- 
tion,8 and  the  imposition  in  a  charter  of  a  specific  form 
or  rate  of  taxation  is  not,  in  the  absence  of  an  express 

1  National  Bank  v.  The  Commonwealth,  9  Wall.  353. 

2  Waite  v   Dowley,  94  U.  S.  527. 

3  People  v.  Commissioners  of  Taxes,  94  U.  S.  415. 

*  R.  R.  Co.  v.  Gaines,  97  U.  S.  697  ;  Trask  ».  Magwire,  18  Wall.  391 ;   Mor- 
gan r.  Louisiana,  93  U  S.  217  ;  Shields  v.  Ohio,  95  id.  319. 

5  J.  B.  Bank  v.  Skelly,  1  Bl.  430. 

6  New  Jersey  v.  Wilson,  7  Cr.  64  ;  New  Jersey  v.  Yard,  95  U.  S.  104. 

7  J.  B.  Bank   v.  Skelly,  1  Bl.  436;  W.  R.  R.  v.  Reid,  18  Wall.  264;    R.  & 
G.  R.  v.  Same,  ibid.  269  ;  Chicago  v.  Sheldon,  9  id.  50;  P.  R.  R.  v.  Magwire,  20 
id.  36 ;  University  v.  People,  99  U.  S.  309 ;  Asylum  v.  New  Orleans,  105  id.  362 

8  Providence  Bank  v.  Billings,  4  Pet.  575 ;    M.  G.  L.  Co.  v.  Shelby  County, 
109  U,  S,  393 ;  Tucker  v.  Ferguson,  22  Wall.  527. 


34  STATE  TAXATION. 

contract  of  exemption  from  other  taxation,  to  be  con- 
strued as  an  implied  exemption  from  such  other  taxa- 
tion,1 and  contracts  of  exemption  from  state  taxation, 
when  expressly  made,  are  to  be  strictly  construed.2  A 
municipal  corporation  cannot,  by  the  exercise  of  a 
statutory  power  of  taxation,  diminish  the  interest  paya- 
ble to  the  holder  of  a  funded  obligation  of  the  munici- 
pality under  the  terms  of  the  bond.3  The  subject  of 
exemption  by  contract  from  state  taxation  is  more  fully 
discussed  in  Chapter  V. 

25.  The  constitutional  grant  to  Congress  of  the 
power  of  regulating  "  commerce  with  foreign  nations, 
and  among  the  several  states,  and  with  the  Indian 
tribes  "  also  affects  to  some  extent  the  exercise  by  the 
states  of  the  power  of  taxation,  but  the  states  are  not 
prohibited  from  taxing  either  the  instrumentalities,  or 
the  subjects,  of  foreign  or  interstate  commerce,  provided 
that  such  taxation  be  imposed  on  those  instrumentali- 
ties and  subjects  as  component  parts  of  the  mass  of 
property  in  the  state,  or  by  reason  of  the  citizenship  of 
their  owners  as  subjects  of  the  sovereignty  of  the  state, 
and  provided  also,  that  that,  which  is  in  form  taxation, 
be  not  in  substance  a  regulation  of,  or  a  restraint  upon, 
foreign  or  interstate  commerce.4  In  accordance  with 
this  distinction,  a  state  may  tax  ships  and  ferry  boats 
as  the  personal  property  of  their  owners,  where  either 
the  owner,  by  reason  of  his  residence,  or  the  property 
because  of  its  situs  is  subject  to  the  taxing  power  of 

1  The  Delaware  E.  K.  Tax,  18  Wall.  206 ;    Erie  Ey.  r.  Penna.,  21   id.  492; 
The  License  Tax  Cases,  5  id.  462;  Home  Insurance  Company  r.  Augusta,  93 
IT.  S.  116. 

2  Tucker  v.  Ferguson,  22  Wall.  527 ;  W.  F.  Co.  v.  East  St.   Louis,  107  U. 
S.  365  ;   U.  P.  Ey.  r.  Philadelphia,  101  U.  S.  528  ;  E.  E.  r.  Gaines,  97  id.  697 ; 
Tomlinson  r.  Branch,  15  Wall.  460. 

3  Murray  v.  Charleston,  96  U.  S.  432. 

4  Gibbons  v.  Ogden,  9  Wheat.    201 ;    The  Passenger   Cases,  7  How.  479  ; 
Transportation  Co.  r.  Wheeling,  99  U.  S.  280 ;  W.  F.  Co.  v.  East  St.  Louis, 
107  id.  374. 


TAXATION    OF    COMMERCE.  35 

the  state;1  and  a  state  may  tax  goods  brought  from 
another  state  and  mingled  with  the  mass  of  property 
in  the  taxing  state,2  and  goods  within  the  state, 
intended  for  transportation  to  another  state  but  not 
actually  started  on  their  voyage;3  provided  that  the 
taxation  is  not  so  imposed  as  to  discriminate  against 
either  the  natural  products  of,  or  goods  manufactured 
in,  another  state.4  A  state  has  the  right  to  tax  its  own 
citizens  for  the  prosecution  of  any  particular  business 
or  profession  within  the  state,  even  if  that  business  be 
indirectly  concerned  with  commerce;  thus,  a  state  may 
tax  exchange  brokers,  and  the  fact  that  bills  of 
exchange  are  instruments  of  foreign  and  interstate  com- 
merce will  not  relieve  the  broker  from  such  taxation.5 
If  property  within  a  state  and  otherwise  liable  to  taxa- 
tion be  in  money  at  the  date  of  its  assessment  for  taxa- 
tion, a  subsequent  investment  thereof  in  a  subject  of 
commerce  does  not  relieve  that  capital  from  liability  to 
state  taxation.6  While  a  state  cannot  tax  the  inter- 
state transportation  of  passengers  or  goods,  it  may 
require  express  companies  doing  business  within  its 
bounds  by  making  contracts  for  interstate  transportation 
to  pay  license  fees  ;7  it  may  tax  its  railway  companies 
upon  the  cash  value  of  their  capital  stock,8  and  it  may 
by  its  charter  of  a  railway  charge  a  toll  payable 

1  W.  F.  Co.  v.  East  St.  Louis  107  U.  S.  365 ;   Transportation  Co.  v.  Wheel- 
ing, 99  id.  273. 

2  Woodruff  r.  Parhara,  8  Wall.  173;  Brown  v.  Houston,  114  U.  S.  622. 

3  Coe  i?.  Errol,  116  U.  S.517. 

4  Ward  v.  Maryland,  12   Wall.    418;   Welton  v.  Missouri,    91  U.  S.  275  J 
Webber  v.  Virginia.  103  id.  344;   Guy  v.  Baltimore,  100  id.  434;   Corson  r. 
Maryland,  120  -id.  502;  Walling  v.  Michigan,  116  id.  446;  Bobbins  v.  Shelby 
County,  120  id.  489;  Sed.  cf.  Machine  Co.  v.  Gage,  100  U.  S.  676;  Hinson  v. 
Lott,  8  Wall.  148 ;  Tiernan  v.  Rinker,  102  U.  S.  123 ;  Downham  v.  Alexan- 
dria Council,  10  Wnll.  173. 

5  Nathan  r.  Louisiana,  8  How.  73. 

6  People  v.  The  Commissioners,  104  U.  S.  466. 

7  Osbornev.  Mobile,  16  Wall.  479. 

8  The  Delaware  K.  E.  Tax,  18  Wall.  206. 


36  STATE    TAXATION. 

to  the  state  for  the  use  of  the  improved  facilities  of 
travel  furnished  by  the  railway.1  On  the  other  hand, 
the  states  may  not  tax  ships  or  ferry  boats,  when  the 
owner  is  not  by  residence  subject  to  the  taxing  power 
of  the  state,  and  when  the  ships  or  ferry  boats  only 
come  within  the  jurisdiction  of  the  state  in  the  prosecu- 
tion of  foreign  or  interstate  commerce.2  Nor  can  a 
state  tax  the  transportation  of  passengers  coming  by 
water  into  its  ports  from  a  foreign  country  or  from 
another  state  ;8  nor  can  a  state  tax  the  interstate  trans- 
portation of  goods  by  water  ;4  nor  can  a  state  impose 
port  dues,  that  is,  charges  payable  by  all  vessels,  enter- 
ing, remaining  in,  or  leaving  a  port  without  regard  to 
services  rendered  to,  or  received  by,  the  vessel  ;5  nor 
can  a  state  tax  a  telegraph  company  upon  messages 
transmitted  by  it  to  points  outside  of  the  state  ;6  nor 
can  a  state  tax  the  interstate  transportation  of  passen- 
gers or  goods.  It,  therefore,  cannot  tax  interstate  freight 
by  the  pound  ;7  nor  can  it  tax  the  operation  of  sleep- 
ing-cars, owned  by  a  foreign  corooration  ;8  nor  can  it 
tax  the  gross  receipts  of  corporations  engaged  in  the 
business  of  running  cars  not  their  own  property  over  a 
railway  line  within  the  state.9 

1  B.  &  O.  R.  R.  v.  Maryland,  21  Wall.  456. 

2  St.  Louis  v.  W.  F.  Co.,  11  Wall.  423  ;  G.  F.  Co.  v.  Pennsylvania,  114  U.  S. 
196 ;  P.  &  S.  S.  S.  Co.  v.  Pennsylvania,  122  id.  326 ;  Hays  v.  P.  M.  S.  S.  Co., 
17  How.  596  ;  Morgan  v.  Parham,  16  Wall.  471  ;  Moran  v.  New  Orleans,  112 
U.  S.  69. 

3  The  Passenger  Cases,  7   How.  283 ;    Henderson  v.  The   Mayor,   92  U.  S. 
259;  Commissioners  of  Immigration  v.  North  German  Lloyd,  ibid.  269;  Chy- 
Lung  v.  Freeman,  ibid.  275  ;  People  v.  Compagnie  Generale  Transatl  antique, 
107   U.  S.  59  ;  P.  &   S.  S.  Co.  v.  Pennsylvania,  122  U.  S.  326,  overruling  the 
case  of  the  State  Tax  on  Railway  Gross  Receipts,  15  Wall.  284. 

4  Almy  v.  California,  24  How.  169. 

5  Steamship  Co.  v.  Port  Wardens,  6  Wall.  31. 

6  W.  U.  T.  Co.  v.  Texas,  105  U.  S.  460. 

7  The   State  Freight  Tax,  15   Wall.   232 ;  Erie  Ry.  v.  Pennsylvania,  ibid. 
282,  note. 

8  Pickard  v.  P  S.  C.  Co.,  117  U.  S.  34;  Tennessee  v.  P.  S.  C.  Co.,  ibid.  51. 

9  Fargo  v.  Michigan,  121  U.  S.  230. 


CHAPTER  IV. 

THE  REGULATION  OF  COMMERCE. 

26.  The  constitutional  provisions. 

27.  The  history  of  the  commercial  clause. 

28.  Commerce  defined. 

29.  The  regulation  of  commerce  defined. 

30.  The  general  distinction  between  the  powers  of  the  United  States  and  of 
the  states  over  commerce. 

31.  Navigable  waters. 

32.  Title  to  the  soil  under  navigable  waters. 

33.  The  regulation  of  navigation. 

34.  The  regulation  of  subjects  of  commerce. 

35.  The  taxation  of  ships. 

36.  Duties  on  tonnage. 

37.  The  taxation  of  the  water  transportation  of  passengers. 

38.  The  taxation  of  goods  in  interstate  commerce. 

39.  Discriminating  taxation  against  products  and  manufactures  of  other 
rates. 

40.  The  taxation  of  exports  by  the  United  States. 

41.  State  taxation  of  imports  and  exports,  and  inspection  laws. 

42.  Improvements  of  navigation. 

43.  Dams  and  bridges. 

44.  Ferries. 

45.  Wharves  and  piers. 

46.  Pilotage. 

47.  Quarantine  and  sanitary  regulations. 

48.  Port  dues. 

49.  Port  regulations. 

50.  Preferences  of  ports. 

51.  Interstate  railway  transportation. 

52.  Railway  tolls. 

53.  The  police  regulation  of  railways. 

54.  State  taxation  of  interstate  transportation  by  railways. 

55.  Telegraphs. 

56.  Commerce  with  the  Indian  tribes. 

26.  The  Constitution  of  the  United  States  contains 
three  clauses  which  directly  bear  upon  the  regulation  of 
commerce.  Section  8  of  article  I  declares  that  "  the 


38  COMMERCE. 

Congress  shall  have  power  ...  to  regulate  commerce 
with  foreign  nations,  and  among  the  several  states,  and 
with  the  Indian  tribes."  Section  9  of  the  same  article 
enumerates  among  the  exceptions  from  the  powers 
granted  to  the  United  States,  that "  no  tax  or  duty  shall 
be  laid  on  articles  exported  from  any  state.  No  prefer- 
ence shall  be  given,  by  any  regulation  of  commerce  or 
revenue,  to  the  ports  of  one  state  over  those  of  another  ; 
nor  shall  vessels  bound  to  or  from  one  state  be  obliged 
to  enter,  clear,  or  pay  duties  in  another."  Section  10 
of  the  same  article,  in  its  enumeration  of  the  expressed 
restrictions  upon  the  powers  of  the  states,  declares,  that 
"no  state  shall,  without  the  consent  of  the  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its 
inspection  laws  :  and  the  net  produce  of  all  duties  and 
imposts,  laid  by  any  state  on  imports  or  exports,  shall 
be  for  the  use  of  the  treasury  of  the  United  States;  and 
all  such  laws  shall  be  subject  to  the  revision  and  control 
of  the  Congress.  No  state  shall,  without  the  consent 
of  the  Congress,  lay  any  duty  of  tonnage."  There  are 
also  other  clauses  of  the  Constitution,  which  indirectly 
affect  the  regulation  of  commerce  by  the  states.  Thus, 
an  act  of  a  state  legislature  may  be  valid  as  a  regulation 
of  commerce  in  a  matter  of  merely  local  concern,  and 
yet  the  act,  as  affecting  a  particular  person  or  corpora- 
tion may  be  void  as  an  impairment  of  the  obligation  of 
a  legally  enforcible  contract,  or  the  act  may  be  void  for 
repugnancy  to  those  other  clauses  of  the  Constitution 
which,  having  regard  to  the  rights  of  citizenship,  forbid 
a  state  to  discriminate  in  favour  of  its  own  citizens  and 
against  the  rights  of  citizens  of  other  states.  These 
constitutional  provisions  are  not  only  in  full  force  and 
vigour  to-day,  but  their  application  is  wider  and  more 
far-reaching  than  the  framers  of  the  Constitution 


NEW   AGENCIES.  39 

imagined  to  be  within  the  bounds  of  possibility.  In  the 
century  that  has  passed  since  the  adoption  of  the  Con- 
stitution the  country  has  made  great  strides.  Less  than 
three  millions  of  people  have  grown  to  be  more  than 
fifty  millions  in  number.  Discoveries  in  science  and 
inventions  in  the  arts  have  developed  new  subjects  of 
trade,  and  have  created  new  agencies  of  commerce. 
Steam  and  electricity  have  been  made  to  do  man's  bid- 
ding. Sailing  vessels  have  given  way  to  steamships, 
and  railways  have  superseded  turnpike  roads  and 
Conestoga  wagons.  Telegraphs  and  telephones  Lave 
annihilated  distance.  The  growth  of  population,  the 
creation  of  new  subjects  of  trade,  and  the  improvements 
in  the  movement  of  traffic  have  necessarily  resulted  in  a 
vast  enlargement  in  the  volume  of  commerce.  In  view 
of  these  great  changes  in  the  conditions  of  the  problem, 
it  is  more  than  ever  important  that  the  constitutional 
limits  upon  the  regulation  of  commerce  should  be  clearly 
comprehended,  and  that  the  line  which  separates  the 
provinces  of  federal  and  of  state  authority  over  this 
subject  of  national  interest  should  be,  so  far  as  is  possi- 
ble, accurately  defined. 

27.  It  is  an  historical  fact  that  the  Constitution  was 
framed  and  adopted  mainly  because  all  of  the  states  had 
suffered  under  the  Confederation  by  reason  of  the  selfish 
commercial  policy  of  England  in  closing  her  markets  to 
goods  of  American  manufacture,  and  because  some  of 
the  states  had  also  suffered  by  reason  of  the  no  less 
selfish  commercial  policy  of  other  states  in  the  imposi- 
tion of  heavy  duties  on  imported  goods,  and  in  the 
enforcement  of  vexatious  restrictions  upon  trade.  There 
were  great  differences  of  opinion  as  to  other  features  of 
the  Constitution,  but,  in  the  convention  of  1787  arid 
among  the  people,  there  was  practical  unanimity  as  to 
the  expediency  of  vesting  in  the  government  of  the 


40  COMMERCE. 

United  States  the  power  of  so  regulating  commerce  as 
to  overcome  the  disintegrating  forces  which  threatened 
the  loss  of  all  that  had  been  gained  by  the  success  of 
the  Revolution.1 

28.  The  term  "  commerce,"  therefore,  as  the  framers 
of  the  Constitution  understood  it,  and  as  Marshall,  C. 
J.,  construed  it  in  Gibbons  v.  Ogden,2  meant  not  only 
traffic,  but  also  commercial  intercourse  in  all  its 
branches,  including  the  purchase  and  sale  of  commodi- 
ties, their  transportation  by  sea  and  on  land,  their  im- 
portation and  exportation,  and  all  that  was  necessarily 
incident  to  the  transaction.  As  the  Constitution  is  a 
frame  of  government  intended  to  endure  for  all  time, 
it  follows  that  the  term  "  commerce "  must  receive  a 
construction  sufficiently  elastic  to  comprehend  not  only 
the  subjects  and  instrumentalities  of  commerce  known 
and  used  when  the  Constitution  was  framed,  but  also  all 
present  and  future  subjects  of  commerce  and  agencies 
of  commercial  intercourse.3  Yet  everything  that  is 
connected  with  commerce  is  not  necessarily  commerce. 
Bills  of  exchange  may  be  given  in  payment  for  goods 
to  be  imported,  and  yet  such  bills  are  mere  personal 
obligations,  and  are  not  in  themselves  subjects  of  com- 
merce.4 On  the  same  principle,  the  issuing  or  negotia- 
tion of  a  policy  of  insurance  against  the  loss  by  fire  of 
any  property,  which  is  not  made  a  subject  of  commerce, 
does  not  constitute  a  transaction  of  commerce.5  So 

1  Gibbons  v.  Ogden,  9   Wheat.  11,  223;  Brown   v.  Maryland,  12  id.   445; 
Cook  v.  Pennsylvania,  97  U.  S.   574;  County  of   Mobile  v.  Kimball,  102  id. 
697;  Chapters  IV,  V,  VI,  VII,  and  VIII  of  Mr.  Bancroft's  History  of  the 
Constitution. 

2  9  Wheat.  1,  189. 

3  P.  Telegraph  Co.  v.  W.  U.  Telegraph  Co.,  96  U.  S.  1. 

4  Bank  of  Augusta  v.  Earle,  13  Pet.  519,  531 ;  Sturges  v.  Crowninshield,  4 
Wheat.  147  ;  Nathan  v.  Louisiana,  8  How.  73. 

5  Paul  v.  Virginia,  8  Wall.  168 ;  Ducat  v.  Chicago,  10  Wall.  410 ;  L.  I.  Co. 
v.  Massachusetts,  ibid.  566;  P.  F.  Association  v.  New  York,  119  U.  S.  110. 


NATURE    OF    COMMERCE.  41 

also,  a  trade-mark,  which  identifies  a  particular  article 
as  one  of  a  class  which  has  as  such  acquired  a  special 
commercial  value,  is  not  in  itself  any  part  of  commerce.1 
On  the  other  hand,  bills  of  lading  of  goods  sold  and 
transported  in  the  course  of  interstate  commerce  are, 
by  reason  of  their  representative  character,  entitled  to 
protection  as  commerce,2  and  the  transmission  of 
ideas  by  telegraph  is  commerce,  for  the  reason 
that  in  the  development  of  modern  business  methods 
the  telegraph  has  become  indispensable  as  a  means  of 
intercommunication  in  commercial  intercourse.3  Would 
not  the  same  reasoning  apply,  in  the  case  of  goods 
admittedly  subjects  of  commerce,  to  the  trade-marks  on 
such  goods,  the  bills  of  exchange  drawn  for  the  price  of 
the  goods,  and  the  policies  of  insurance  against  the  loss 
of  tbe  goods  by  fire,  or  by  the  perils  of  navigation? 
Insurance,  commercial  paper,  and  trade-marks  are  as 
certainly  nearly  related  to,  and  as  truly  incidents  of 
commerce,  as  a  telegraphic  inquiry  as  to  the  state  of 
the  market,  or  a  telegraphic  order  for  the  forwarding 
of  the  goods,  though  unlike  the  bill  of  lading,  they  do 
not  represent  the  goods.  Of  course,  if  the  subject- 
matter  be  in  its  nature  commercial,  it  is  immaterial 
whether  the  agency,  by  which  commerce  is  carried  on, 
be  a  natural  person,  or  an  association  of  natural  per- 
sons, or  a  corporation.4 

29.  To  regulate  commerce  is,  as  Marshall,  C.  J.,  said 
in  Gibbons  v.  Ogden,5  "  to  prescribe  the  rule  by  which 
commerce  is  to  be  governed/'  It  is  obvious  that  com- 

1  The  Trade-Mark  Cases,  100  U.  S.  82,  95. 

2  Alray  v.  California,  24  How.  169 ;  as  explained  by  Miller,  J.,  in  Wood- 
ruff*. Parham,  8  Wall.  138. 

3  P.  Telegraph  Co.  v.  W.  U.  Telegraph  Co ,  96  U.  S.  1,  9. 

4  Paul  v.  Virginia,  8  Wall.  168,  172;  G,  F.  Co.  v.  Penna.,  114  U.  S.  196, 
215,  217 ;  W.  F.  Co.  v.  East  St.  Louis,  107  id.  374. 

•  9  Wheat.  1,  196. 


42  COMMERCE. 

merce  may  be  directly  regulated  by  rules  prescribing 
the  manner  in  which  its  operations  are  to  be  conducted, 
or  it  may  be  indirectly  regulated  by  the  imposition  of 
taxation  upon  its  subjects  or  its  instrumentalities.  In 
Philadelphia  and  Southern  Steamship  Company 
v.  Pennsylvania,1  Bradley,  J.,  said,  "  taxing  is  one 
of  the  forms  of  regulation.  It  is  one  of  the  princi- 
pal forms."  In  Gibbons  v.  Ogden,2  Marshall,  C. 
J.,  clearly  distinguishes  between  the  power  to  regulate 
commerce  and  the  power  to  tax,  and  it  is  a  legitimate 
conclusion  from  that  distinction,  that  Congress  cannot, 
in  the  exercise  of  the  power  to  regulate,  tax  commerce, 
and  that  the  states  are  not  prohibited  from  taxing  either 
the  instrumentalities  or  the  subjects  of  foreign  or  inter- 
state commerce,  provided  that  such  taxation  be  imposed 
on  those  instrumentalities  and  subjects  of  commerce  as 
component  parts  of  the  mass  of  property  in  the  country, 
and  provided  also  that  that  which  is  in  form  taxation 
be  not  in  substance  a  regulation,  or,  in  other  words,  a 
restraint  upon,  or  a  prohibition  of,  foreign  or  inter- 
state commerce.  Taney,  C.  J.,  said  in  the  Passenger 
Cases,3  "  it  has  always  been  held  that  the  power  to 
regulate  commerce  does  not  give  to  Congress  the 
power  to  tax  it,  nor  prohibit  the  states  from  taxing  it 
in  their  own  ports  and  within  their  own  jurisdiction. 
The  authority  of  Congress  to  lay  taxes  upon  it  is  de- 
rived from  the  express  grant  of  power  in  the  eighth 
section  of  the  first  article  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises,  and  the  inability  of  the  states  to 
tax  it  arises  from  the  express  prohibition  contained  in 
the  tenth  section  of  the  same  article."  In  the  same 
case,4  McLean,  J.,  said,  "a  state  cannot  regulate  for- 
eign commerce,  but  it  may  do  many  things  which  more 

1  122  U.S.  336.  3  7  How.  479. 

2  9  Wheat.  201.  *  p.  402. 


REGULATION    BY    TAX.  43 

or  less  affect  it.  It  may  tax  a  ship  or  other  vessel  used 
in  commerce  the  same  as  other  property  owned  by  its 
citizens.  A  state  may  tax  the  stages  in  which  the  mail 
is  transported,  but  this  does  not  regulate  the  conveyance 
of  the  mail  any  more  than  taxing  a  ship  regulates  com- 
merce, and  yet  in  both  instances  the  tax  on  the  prop- 
erty in  some  degree  affects  its  use."  The  essential  dif- 
ference between  taxation  of  commerce  as  property  and 
regulation  of  commerce  in  the  guise  of  taxation  is 
elaborated  in  the  judgments  in  Transportation  Co.  v. 
Wheeling1  and  in  Wiggins  Ferry  Co.  v.  East  St. 
Louis2  and  is  illustrated  by  every  case  in  which  the 
Supreme  Court  of  the  United  States  has  had  to  deter- 
mine whether  any  particular  tax  imposed  under  state 
authority  on  a  subject,  or  instrumentality,  of  foreign 
or  interstate  commerce  be  permitted,  or  forbidden,  by 
the  Constitution. 

30.  Recurring  to  the  constitutional  provisions  affect- 
ing the  regulations  of  commerce,  as  quoted  in  Sec.  27,  and 
bearing  in  mind  the  general  principles  of  constitutional 
construction,  it  will  be  observed  that  the  constitutional 
provisions  include:  (1)  an  express  grant  to  Congress  of 
the  power  of  regulating  commerce  "with  foreign 
nations,  and  among  the  several  states  and  with  the 
Indian  tribes  ;"  with  the  expressed  restriction  that  the 
United  States  shall  not  lay  any  tax  or  duty  on  articles 
exported  from  any  state,  nor  give  any  preference,  by 
any  regulation  of  commerce,  to  the  ports  of  one  state 
over  those  of  another,  nor  oblige  vessels  bound  to  or 
from  one  state  to  enter,  clear,  and  pay  duties  in  another; 

(2)  an  implied  restraint  upon  state  regulation  of  com- 
merce, foreign,  interstate,  pr  with  the  Indian  tribes ;  and 

(3)  an  expressed  prohibition  of  state  duties  on  imports, 
exports,  and  tonnage,  save  under  certain  defined  restric- 

1  99  U.  S.  280.  2  1C7  U.  S.  374. 


44  COMMERCE. 

tions,  the  most  material  of  which  restrictions  is  the 
consent  of  Congress.  It  is  obvious  that  the  power 
delegated  to  Congress  is  that  of  regulating,  not  all 
commerce,  but  commerce  only  of  enumerated  kinds, 
and  under  expressed  restrictions.  The  result  of  the 
authorities,  so  far  as  they  deal  with  the  expressed  grant 
of  power  to  Congress,  and  the  consequent  implied  re- 
strictions upon  the  states,  is  that  the  internal  commerce 
of  a  state,  that  is,  that  commerce  which  is  begun,  con- 
tinued, and  ended  within  a  state,  is  exclusively  a  sub- 
ject for  the  regulation  of  that  state  ;  and  that  foreign 
and  interstate  commerce,  that  is,  that  commerce,  which, 
in  its  inception,  or  at  any  point  of  its  progress,  or  at  its 
conclusion,  passes  beyond  the  boundary  of  a  state,  is  a 
subject  of  final  regulation  by  Congress,  but  that,  until 
Congress  has  regulated  such  commerce,  the  state  may 
incidentally  regulate  it  in  points  of  merely  local  con- 
cern. The  general  distinction  was  clearly  put  by  Mar- 
shall, C.  J.,  when  he  said  in  Gibbons  v.  Ogden,1  "  the 
genius  and  character  of  the  whole  government  seems  to 
be,  that  its  action  is  to  be  applied  to  all  the  external 
concerns  of  the  nation,  and  to  those  internal  concerns, 
which  affect  the  states  generally,  but  not  to  those  which 
are  completely  within  a  particular  state,  which  do  not 
affect  other  states,  and  with  which  it  is  not  necessary  to 
interfere  for  the  purpose  of  executing  some  of  the 
general  powers  of  the  government.  The  completely  in- 
ternal commerce  of  a  state,  then,  may  be  considered  as 
reserved  for  the  state  itself."  In  the  exercise  of  its 
power  over  commerce,  Congress  has  regulated  the  regis- 
tration and  recording  of  the  titles  of  ships,2  the  clear- 
ance and  entry  of  ships  and  steamers,8  the  tonnage 
duties  payable  to  the  United  States  by  vessels  ;4  navi- 

1  9  Wheat.  294  3  Kev.  Stat.  141,  97  et  seq. 

2  Kev.  Stat.  Sec.  141,  31  et  seq.  *  Kev.  Stat.  4219. 


NAVIGABLE   WATERS.  5 

gation,  including  sailing  rules,  and  the  life-saving  ser- 
vice,1 the  transportation  of  passengers  and  merchandise 
by  sea,'2  the  shipping  of  sailors,3  and  their  pay  and 
discharge;4  the  lighthouse  service;5  the  coast  sur- 
vey;6 the  improvement  of  rivers  and  harbours;7  and 
telegraphs.8  It  has  authorized  the  transportation  of 
government  supplies,  and  mails,  and  troops  by  railway, 
and  the  connection  of  railways  of  different  states  so  as 
to  form  a  continuous  line,9  and  by  the  Interstate  Com- 
merce Act10  it  has  regulated  the  interstate  transportation 
of  passengers  and  freight  by  railways  and  it  has  con- 
stituted a  commission  to  carry  the  statute  into  effect. 
The  states  have  facilitated  commerce  by  the  improve- 
ment of  navigation,  the  construction  of  railways, 
wharves,  and  bridges,  and  they  have  regulated  it  by 
the  enactment  of  pilotage,  quarantine,  and  police  laws. 
The  respective  powers  of  the  government  of  the  United 
States  and  the  governments  of  the  states  over  commerce 
can  best  be  illustrated  by  an  analysis  and  classification 
of  the  cases  in  which  the  Supreme  Court  of  the  United 
States  has  been  called  upon  to  deal  with  the  subject. 

31.  At  the  time  of  the  adoption  of  the  Constitution, 
commerce  meant  primarily  the  navigation  of  the  sea  and 
of  the  rivers  flowing  into  it  in  the  course  of  the  trans- 
portation of  goods  from  foreign  countries,  for  the  inter- 
state transportation  of  goods,  either  by  land  or  water, 
was  then  comparatively  insignificant.  It  is  natural, 
therefore,  in  considering  the  regulation  of  commerce 
under  the  Constitution  to  treat,  first,  of  navigation,  and, 
at  the  outset  of  the  discussion,  to  determine  what  are, 
in  law,  navigable  waters.  In  England  navigable  waters 

Sec.  4233.  6  4681. 

Sec.  4252.  7  Sec.  5244. 

Sec.  4501  et  scq. ;  Sec.  4509  et  seq.   8  Sec.  5263. 

Sec  4549.  9  Sec.  5258. 

Sec.  4653.  w  Act  of  Feb.  4, 1887. 


46  COMMERCE. 

in  the  legal  sense  of  the  terra,  and  also  in  actual  fact, 
are  those  only  in  which  the  tide  ebbs  and  Hows.1  As 
the  adoption  of  the  English  rule  in  this  country  would 
have  necessarily  taken  the  inland  lakes  and  the  rivers 
which  are  in  fact  navigable  where  there  is  no  ebb  or 
flow  of  the  tide,  out  of  the  jurisdiction  of  admiralty  and 
also  out  of  the  jurisdiction  of  Congress  in  the  regulation 
of  commerce,  Congress  by  the  9th  section  of  the  Judi- 
ciary Act  of  1789  constituted  navigability  in  fact  the 
test  of  navigability  in  law.  Nevertheless,  in  certain  of 
the  earlier  cases  the  English  test  of  navigability  in  a 
legal  sense  was  followed,  although,  as  has  been  shown, 
the  reason  of  the  rule  failed  here,2  but,  in  the  later 
cases,  it  is  laid  down  that  waters  in  the  United  States 
which  are  navigable  in  fact  are  navigable  in  law,  and, 
as  such,  subject  to  the  regulating  power  of  Congress  in 
so  far  as  they  may  be  waterways  of  foreign  arid  inter- 
state commerce.3 

In  England  the  admiralty  jurisdiction  was  further 
restricted  by  the  requirement  that  the  locus  in  quo, 
though  within  the  ebb  and  flow  of  the  tide,  should  not 
be  infra  corpus  comitatus,  nor  at  sea  infra  fauces  terrce, 
but  these  restrictions  are  not  applicable  in  the  United 
Spates.4  Before  the  court  had  abandoned  the  English 
test  as  to  admiralty  jurisdiction,  it  was  questioned  by 


1  Genessee  Chiefs  Fitzhugh,  12  How.  443,  454. 

2  The  Thomas  Jefferson,  10  Wheat.  428;  The  Orleans  v.  Phoebus,   11  Pet. 
175;  Peyroux  v.  Howard,  7  id    324;  U.  S.  v.  Coombs,  12  id.  72;  Waring  v. 
Clarke,  5  How.  441. 

3  The  Genessee  Chief  v.  Fitzhugh,  12  How.  443  ;  The  Daniel  Ball,  10  WTall. 
57;  The  Montello,  20  id.  430;  Barney  v  Keoknk,  94  U.  S.  324     As  Davis, 

J  ,  said  in  the  Montello,  20  Wall.  441,  "  the  capability  of  use  by  the  public  for 
purposes  of  transportation  and  commerce"  affords  the  "true  criterion  of  the 
navigability  of  a  river,  rather  than  the  extent  and  manner  of  that  use.  If  it 
be  capable  in  its  natural  state  of  being  used  for  purposes  of  commerce,  no  mat- 
ter in  what  mode  the  commerce  may  be  conducted,  it  is  navigable  in  fact,  and 
becomes  in  law  a  public  river  or  highway." 

4  Waring  v,  Clarke,  5  How.  441. 


ADMIRALTY.  47 

Story,  J.,  whether  or  not,  the  power  to  regulate  com- 
ui3rce  authorized  an  extension  of  the  admiralty  jurisdic- 
tion to  the  inland  lakes,1  but,  in  The  Genessee  Chief  v. 
Fitzhugh,2  Taney,  C.  J=,  showed  clearly  that  the  judicial 
power  being  denned  by  the  Constitution  could  not  be 
extended  by  legislation  under  the  guise  of  a  regulation 
of  commerce,  the  legislative  regulation  of  any  subject- 
nutter  of  jurisdiction  being  in  its  nature  essentially  dis- 
tinct from  the  creation  of  a  tribunal,  and  the  vesting  in 
tliat  tribunal  of  jurisdiction  over  any  particular  subject- 
in  Uter.  Tiie  admiralty  jurisdiction  is,  therefore, 
limited  on  inland  waters  to  vessels  engaged  in  and  to 
miritime  contracts  and  torts  concerned  with,  or  grow- 
ing out  of,  interstate  transportation.^  Therefore,  con- 
tracts of  affreightment  between  ports  of  the  same  state  on 
an  inland  lake,4  and  contracts  for  supplies  furnished  to 
vessels  engaged  in  such  trade5  are  matters  of  local  juris- 
diction, and  not  of  admiralty  jurisdiction  in  the  courts 
of  the  United  States. 

32.  Before  the  Revolution,  the  title  to  navigable 
waters  and  to  the  soil  under  them  was  vested  in  the 
crown,  or  in  its  grantees.  After  the  Revolution,  the 
people  became  sovereign,  and  thenceforth  the  title  to 
navigable  waters  within  the  jurisdiction  of  a  riparian 
state  and  to  the  soil  under  them  became  vested  in  that 
state  for  the  public  use  of  its  citizens.6  After  the 
adoption  of  the  Constitution,  as  before,  the  title  to  navi- 

1  The  Thomas  Jefferson,  10  Wheat.  428. 

2  12  How.  443,  452. 

3  The    Genessee    Chief,  12    How.    443;    Allen  v.    Newberiy,  21   id.  244; 
Maguire  v.  Card,  -ibid.  248;  The  Belfast,  7  Wall.  624. 

4  Allen  v.  Newberry,  21  How.  244. 

5  McGuire  v.  Card,  21  How.  248. 

6  Martin  v.  Waddell,  16  Pet.  367;    Den  v.  Jersey  Co.,  15  How.  426;  Smith 
v.  Maryland,  18  id.  71 ;  Weber  v.  Harbor  Commissioners,  18  Wall.  57 ;    Run- 
die  v.  D.  &.  R.  C.  Co.,  14  How.  807 ;    Jones  v.  Soulard,  24  How.  41 ;   St.  P.  & 
P.  K.  R.  v.  Schurmeier,  7  Wall.  272. 


48  COMMERCE. 

gable  waters  and  to  the  soil  under  them  and  the  right 
to  fish  therein  remained  in  the  riparian  state,  its  pro- 
prietary title  extending  in  the  case  of  inland  waters 
constituting  its  boundary  1  from  ordinary  high-water 
mark  ad  medium  filce,  and  in  the  case  of  the  sea  and 
its  bays,  to  the  distance  that  the  international  jurisdic- 
tion of  the  United  States  extended ;  and  by  force 
of  the  Constitution,  the  United  States  acquired  only 
the  right  to  exercise  over  navigable  waters  its  power  of 
regulating  commerce,  and  states  which  were  admitted 
to  the  Union  subsequently  to  the  adoption  of  the  Con- 
stitution have,  of  course,  in  this  respect  the  same  rights 
of  sovereignty  and  jurisdiction  as  the  original  thirteen 
states.2  The  distinction  between  rights  of  navigation 
over  waters  and  the  rights  to  the  soil  under  them  is 
illustrated  by  two  cases.  In  Smith  v.  Maryland,8  the 
facts  were,  that  the  state  of  Maryland,  having  enacted  a 
statute  prohibiting  the  taking  of  oysters  in  its  waters  in 
a  certain  manner  under  pain  of  forfeiting  to  the  state 
the  vessel  employed  for  that  purpose,  the  sloop  Volant, 
owned  by  the  plaintiff  in  error,  and  duly  licensed  as  a 
coasting  vessel  under  the  statutes  of  the  United  States, 
was  seized  under  the  state  statute  and  condemned  to 
forfeiture  in  a  regular  proceeding  in  a  state  court.  The 
Supreme  Court  of  the  United  States  affirmed  the  judg- 
ment of  the  state  court,  holding  that  the  title  to  the  soil 
under  navigable  waters  within  its  jurisdiction  being 
vested  in  the  riparian  state,  that  state  could  rightfully 
regulate  the  exercise  of  rights  of  fishing  therein,  and 
enforce  by  judicial  proceedings  a  forfeiture  of  ves- 
sels whose  navigators  should  fail  to  conform  to 

1  Barney  v.  Keokuk,  94  U.  S.  324. 

2  Pollard  v.  Hagan,  3  How.  212;   Weber  v.  Harbor   Commissioners,    18 
Wall.  57. 

8  18  How.  71. 


SOIL    UNDER    WATERS.  49 

the  regulations  so  prescribed,  and  that  a  license  to 
navigate  granted  by  the  United  States  confers  "no 
immunity  from  the  operation  of  valid  laws  of  a  state." 
The  court,  however,  expressly  declined  to  give  any 
opinion  as  to  the  limits  of  the  trust  under  which  ri- 
parian states  hold  the  soil  under  their  navigable 
waters,  or  to  decide  whether  rights  of  fishing  in  such 
waters  could  he  enjoyed  only  by  the  citizens  of  the 
state,  or  by  all  citizens  of  the  United  States  in  common. 
The  next  case,  McCready  v.  Virginia,1  not  only  fol- 
lowed in  the  line  of  Smith  v.  Maryland,  but  also  put  at 
rest  the  question  undetermined  in  that  case.  The  facts 
were  that,  under  a  statute  of  Virginia  similar  in  terms 
to  the  statute  of  Maryland,  save  that  it  also  imposed  a 
pecuniary  fine  upon  the  offender,  McCready,  a  citizen 
of  Maryland,  was  indicted,  convicted,  and  fined  in  a 
state  court,  and  the  Supreme  Court  of  the  United  States 
affirmed  the  conviction,  holding  that  the  riparian  state 
is  a  trustee,  not  for  all  the  citizens  of  the  United  States, 
but  only  for  its  own  citizens  as  to  the  soil  under  its 
navigable  waters,  and  the  rights  of  fishing  in  such 
waters,  and  that,  as  Waite,  C.  J.,  said,2  "the  right 
which  the  people  of  the  state  thus  acquire  comes  not 
from  their  citizenship  alone,  but  from  their  citizenship 
and  property  combined,"  and  "  it  is,  in  fact,  a  property 
right  and  not  a  mere  privilege  or  immunity  of  citizen- 
ship," and,  therefore,  a  right  which  does  not,  by  force  of 
the  Constitution,  vest  in  the  citizens  of  other  states.  It 
has  likewise  been  held,  that  the  grant  to  the  United 
States  of  jurisdiction  in  admiralty  does  not  carry  with 
it  a  cession  of  navigable  waters,  or  of  general  jurisdic- 
tion over  them,  and,  therefore,  the  case  of  a  murder 
committed  on  board  a  vessel  of  the  navy  of  the  United 
States,  while  at  anchor  in  navigable  waters  within  the 

1  94  U.  S.  391.  »  p.  395. 


50  COMMERCE. 

jurisdiction  of  a  state,  is  not  cognizable  in  a  court  of 
the  United  States.1 

33.  The  controversy  as  to  the  respective  provinces  of 
the  United  States  and  of  the  states  in  the  regulation  of 
navigation  was  first  brought  to  the  attention  of  the 
court  in  the  leading  case  of  Gibbons  v.  Ogden,2  wherein 
the  facts  were,  that  the  state  of  New  York  had  by  stat- 
ute granted  to  Livingston  and  Fulton  the  exclusive 
right,  for  a  terra  of  years  not  then  expired,  of  naviga- 
ting with  boats  moved  by  steam  all  the  waters  within 
the  jurisdiction  of  New  York,  and  that  license  had  by 
mesne  assignments  become  vested  in  Ogden,  a  citizen  of 
New  York.  Gibbons,  styled  on  the  record  a  citizen  of 
New  Jersey,  was  then  engaged  in  the  business  of  trans- 
porting passengers  on  steamboats  owned  by  him, 
licensed  as  coasting  vessels  by  the  United  States, 
and  plying  between  Elizabethtown  in  New  Jersey 
and  the  city  and  port  of  New  York.  Ogden  filed 
his  bill  in  the  Court  of  Chancery  of  New  York, 
and  obtained  an  injunction  restraining  Gibbons 
from  running  his  steamboats  in  the  waters  of  New 
York,  and  a  final  decree  having  been  entered  against 
Gibbons  in  the  court  of  last  resort  of  the  state 
of  New  York,  he  removed  the  cause  by  appeal  to  the 
Supreme  Court  of  the  United  States,  which  reversed 
the  decree  of  the  court  below,  and  remanded  the  rec- 
ord with  directions  to  dismiss  the  plaintiff's  bill.3  The 

1  U.  S.  v.  Be  vans,  3  Wheat.  336.  2  9  Wheat.  1. 

3  Mr.  Justice  Wayne,  in  his  speech  of  26th  May,  1847,  welcoming  Mr. 
Webster  to  Savannah,  referred  to  Gibbons  v.  Ogden  as  "  a  controversy  begun 
by  a  Georgian  in  behalf  of  the  constitutional  rights  of  the  citizen,"  and 
added,  "when  the  late  Mr.  Thomas  Gibbons  determined  to  hazard  a  large 
part  of  his  fortune  in  testing  the  constitutionality  of  the  laws  of  New  York 
limiting  the  navigation  of  the  waters  in  that  state  to  steamers  belonging  to  a 
company,  his  own  interest  was  not  so  much  concerned  as  the  right  of  every 
citizen  to  use  a  coasting  license  upon  the  waters  of  the  United  States,  in 
whatever  way  their  vessels  were  propelled.  It  was  a  sound  view  of  the  law 


NAVIGATION.  51 

record,  therefore,  required  the  court  to  decide  two 
questions,  first,  as  to  the  power  of  the  United  States  to 
so  regulate  commerce  as  to  license  passenger-carrying 
steam  vessels,  plying  between  different  states,  to  navi- 
gate waters  within  the  jurisdiction  of  a  state,  and  sec- 
oti'l,  as  to  the  power  of  a  state  to  so  regulate  commerce 
as  to  control  the  navigation  of  its  waters  by  vessels 
engaged  in  interstate  commerce.  The  judgment  of  the 
CKirt  sustained  the  power  asserted  for  the  government 
of  the  United  States,  and  denied  the  existence  of  the 
power  claimed  to  have  been  reserved  to  the  state,  and 
in  reaching  that  result  the  court  enunciated  in  clear 
terms  the  criteria  of  distinction  between  federal  and 
state  power  over  commerce.  They  held  that  the  power 
to  regulate  commerce  with  foreign  nations  and  among 
the  several  states  "includes  every  species  of  commer- 
cial intercourse  between  the  residents  of  any  one  state 
and  the  residents  of  a  foreign  nation,  or  the  residents  of 
another  state,"  but  that  it  does  not  "  comprehend  that 
commerce,  which  is  completely  internal,  which  is  ear- 
but  not  broad  enough  for  the  occasion.  It  is  not  unlikely  that  the  case  would 
have  been  decided  upon  it,  if  you  had  not  insisted  that  it  should  be  put  upon 
the  broader  constitutional  ground  of  commerce  and  navigation.  The  court 
felt  the  application  and  force  of  your  reasoning,  and  it  made  a  decision  releas- 
ing every  creek  and  river,  lake,  bay,  and  harbour,  in  our  country,  from  the 
interference  of  monopolies,  which  had  already  provoked  unfriendly  legislation 
between  some  of  the  states,  and  which  would  have  been  as  little  favourable  to 
the  interest  of  Fulton  as  they  were  unworthy  of  his  genius."  Mr.  Webster, 
in  his  reply  to  Judge  Wayne,  said :  "  It  is  true,  that,  in  the  case  of  Gibbons 
v.  Ogden,  I  declined  to  argue  the  case  on  any  other  ground  than  that  of  the 
great  commercial  question  presented  by  it,  the  then  novel  question  of  the 
constitutional  authority  of  Congress  exclusively  to  regulate  commerce  in  all 
its  forms,  on  all  the  navigable  waters  of  the  United  States,  their  bays  rivers, 
and  harbours,  without  any  monopoly,  restraint,  or  interference  created  bysta'e 
legislation.  That  question  I  regarded  as  all-important.  Other  grounds 
might  have  been  sufficient  for  the  disposal  of  this  particular  cause,  but  they 
were  of  no  public  or  permanent  importance.  If  that  great  point  had  then 
been  waived  or  evaded,  it  is  easy  now  to  see  what  inferences  unfavourable  to 
the  just  authority  of  Congress  might  have  been  drawn."  2  Webster's  Works, 
399,  402. 


52  COMMERCE. 

ried  on  between  man  and  man  in  a  state,  or  between 
different  parts  of  the  same  state,  and  which  does  not 
extend  to  or  affect  other  states  ;"  that,  both  as  to  foreign 
and  interstate  commerce,  u  the  power  of  Congress  does 
not  stop  at  the  jurisdictional  lines  of  the  several  states," 
bat  may  be  exercised  within  the  territory  of  a  state  wher- 
ever that  which  is  at  the  time  the  subject  of  foreign  or 
interstate  commerce  may  be;  that  the  power  of  regu- 
lating foreign  and  interstate  commerce  is  exclusively 
vested  in  Congress,  and  no  part  of  that  power  can  be  con- 
currently or  to  any  extent,  exercised  by  the  states  ;  that 
the  power  to  regulate  interstate  and  foreign  commerce 
includes  as  an  integral  part  thereof  the  regulation  of  the 
navigation  of  waters  within  the  jurisdiction  of  any 
state  in  the  prosecution  of  such  commerce  by  the  trans- 
portation of  either  passengers  or  goods  in  vessels  pro- 
pelled by  any  sort  of  motive  power ;  that  the  grant  to  the 
United  States  of  that  power  forbids  the  states  to  create 
monopolies  to  interfere  with  the  free  navigation  of  their 
waters  in  the  prosecution  of  foreign  or  interstate  com- 
merce ;  and  that,  for  these  reasons,  the  statutes  of  New 
York  granting  to  Fulton  and  his  successors  the  exclu- 
sive rights  under  which  they  claimed  were  void  for 
repugnancy  to  the  Constitution.  In  The  Daniel  Ball,1 
a  legitimate  corollary  of  the  main  point  established  in 
Gibbons  v.  Ogden,  was  enunciated.  The  facts  were, 
that  the  Acts  of  Congress  of  7  July,  1838,2  and  30 
August,  1852,3  having  required,  under  a  penalty,  all 
steam  vessels  engaged  in  the  transportation  of  passen- 
gers and  goods  upon  "  the  bays,  lakes,  rivers,  or  other 
navigable  waters  of  the  United  States,  to  be  inspected 
and  licensed,"  the  Daniel  Ball,  a  steamer  engaged  in 
navigating  Grand  river  in  the  state  of  Michigan  between 
the  cities  of  Grand  Rapids  and  Grand  Haven  was  libeled 

1  10  Wall.  557.  2  5  Stat.  304.  3  10  Stat.  61. 


NAVIGATION.  53 

by  the  United  States  in  the  court  of  the  proper  district 
for  violation  of  the  statutes,  it  being  admitted  by  stipu- 
lation that  some  of  the  goods  she  carried  came  from,  or 
were  destined  for,  places  out  of  the  state  of  Michigan. 
A  decree  of  condemnation  was  made  in  the  court  below, 
and  affirmed  in  the  Supreme  Court,  on  the  ground  that 
the  vessel,  though  plying  exclusively  within  the  limits 
of  a  state,  was  engaged  in  interstate  commerce,  for  as  to 
each  article  of  merchandise  transported  from  a  point 
without  the  state  to  a  point  within  the  state,  or  vice 
versa,  interstate  commerce  began  whenever  the  article 
commenced  to  move  in  trade  from  one  state  to  another, 
and  continued  until  the  article  reached  its  destination, 
and  the  vessel  was,  by  reason  of  its  participation  in  that 
transportation,  subject  to  the  regulating  power  of  Con- 
gress.1 The  judgments  in  Sinnot  v.  Davenport?.2  and  in 
Foster  v  Davenport,3  were  the  necessary  result  of  the 
principles  upon  which  the  judgment  in  Gibbons  v. 
Ogden  was  based.  These  cases  raised  the  question  of 
the  constitutionality  of  a  statute  of  Alabama  requiring 
the  owners  of  steamboats  navigating  the  waters  of  that 
state  to  file  with  the  local  authorities  a  statement  in 
writing  setting  forth  the  name  of  the  vessel,  the  name 
of  its  owners,  their  places  of  residence,  and  the  amount 
of  their  respective  interests  in  the  vessel,  as  regulations 
of  commerce  affecting  in  Sinnot's  case,  vessels  licensed 

t  l  22  How.  227.  2  22  How.  244, 

3  Field,  J.,  said  very  forcibly,  p.  566,  "we  are  unable  to  draw  any  clear  and 
distinct  line  between  the  authority  of  Congress  to  regulate  an  agency  employed 
in  commerce  between  the  states,  when  that  agency  extends  through  two  or 
more  states,  and  when  it  is  confined  in  its  action  entirely  within  the  limits  of 
a  single  state.  If  its  authority  does  not  extend  to  an  agency  in  such  com- 
merce, when  that  agency  is  confined  within  the  limits  of  a  state,  its  entire 
authority  over  interstate  commerce  may  be  defeated.  Several  agencies  com- 
bining, each  taking  up  the  commodity  transported  at  the  boundary  line  at  one 
end  of  a  state,  and  leaving  it  at  the  boundary  line  at  the  other  end,  the  federal 
jurisdiction  would  be  entirely  ousted,  and  the  constitutional  provision  would 
become  a  dead  letter." 


54  COMMERCE. 

under  the  Act  of  Congress  to  carry  on  the  coasting 
trade  and  plying  between  a  port  in  Alabama  and  ports 
in  other  states,  and,  in  Foster's  case,  steamboats 
licensed  by  the  United  States  and  employed  as  lighters 
and  towboats  in  the  port  and  harbour  of  Mobile  in  aid 
of  vessels  engaged  in  commerce,  either  foreign  or  coast- 

O     o  '  O 

wise,  with  other  states.  In  each  case  the  court  held  the 
statute  of  Mobile  to  be  void  as  an  attempted  regulation 
of  commerce.1  The  case  of  Philadelphia  and  Southern 
Steamship  Company  v.  Pennsylvania2  follows  in  the 
same  line,  for  it  was  therein  held,  that  a  state  cannot 
tax  the  gross  receipts  of  a  steamship  company  incor- 
porated by  it  and  engaged  in  the  transportation  of  per- 
sons and  of  goods  in  the  prosecution  of  both  foreign 
and  interstate  commerce.  The  principle  established  by 
Gibbons  v.  Ogden  is  further  exemplified  by  Hall  v. 
DeCuir,3  in  which  the  question  was  as  to  the  validity 
of  a  Civil-Rights  statute  of  Louisiana,  which  had  been 
so  construed  by  the  Supreme  Court  of  the  state  as  to 
require  "  those  engaged  in  the  transportation  of  passen- 
gers among  the  states  to  give  to  all  persons  traveling 
within  that  state,  upon  vessels  employed  in  such  busi- 
ness, equal  rights  and  privileges  in  all  parts  of  the 
vessel,  without  distinction  on  account  of  race  or  colour," 
and  to  subject  "  to  an  action  for  damages  the  owner  of 
such  a  vessel,  who  excludes  coloured  passengers,  on 
account  of  their  colour,  from  the  cabin  set  apart  by 
him  for  the  use  of  whites  during  the  passage/'  The 
Court  held  the  statute  to  be  void  as  an  attempted  regu- 
lation of  interstate  commerce,  on  the  ground  that  the 
statute  did  not  "  act  upon  the  business  through  the  local 
instruments  to  be  employed  after  coming  within  the 

1  The  case  of  New  York  v.  Miln,   11  Pet.  102,  though  cited  and  relied 
upon  at  the  argument,  was  not  noticed  in  the  judgment  of  the  court. 

2  122  U.  S.  326.  3  95  U.  S.  485. 


NAVIGATION.  53 

state,  but  directly  upon  the  business  as  it  comes  into  the 
state  from  without  or  goes  out  from  within."1  Waite, 
C.  J.,  said,2  "  while  it  purports  only  to  control  the 
carrier  when  engaged  within  the  state,  it  must  neces- 
sarily influence  his  conduct  to  some  extent  in  the  man- 
agement of  his  business  throughout  his  entire  voyage. 
His  disposition  of  passengers  taken  up  and  put  down 
within  the  state,  or  taken  up  within  to  be  carried 
without,  cannot  but  affect  in  a  greater  or  less  degree 
those  taken  up  without  and  brought  within,  and  some- 
times those  taken  up  and  put  down  without.  A  pas- 
senger in  the  cabin  set  apart  for  the  use  of  whites  with- 
out the  state  must,  when  the  boat  comes  within,  share 
the  accommodations  of  that  cabin  with  such  coloured 
persons  as  may  come  on  board  afterwards,  if  the  law  is 
enforced.  It  was  to  meet  just  such  a  case  that  the  com- 
mercial clause  in  the  Constitution  was  adopted.  .  .  . 
If  the  public  good  requires  such  legislation,  it  must 
come  from  Congress,  and  not  from  the  states."3  The 
case  of  Veazie  v.  Moor4  presents  the  converse  of  the 
main  proposition  enunciated  in  Gibbons  v.  Ogden  and 
in  The  Daniel  Ball.  The  facts  were,  that  the  river 
Penobscot  being  entirely  within  the  state  of  Maine 
from  its  source  to  its  mouth,  the  last  eight  miles  from 
its  source  not  being  navigable  by  reason  of  dams,  but 
there  being  higher  up  the  stream  an  imperfect  naviga- 
tion, without  outlet,  or  connection  with  any  other  water- 
way, the  state  of  Maine,  in  consideration  of  improvements 
to  be  made  to  that  navigation,  granted  to  Moor  and 
his  associates  an  exclusive  right  of  navigating  by  steam- 
boats such  portions  of  the  stream  as  they  should  im- 
prove, and  Veazie,  having  built  and  attempted  to  oper- 

1  Per  Waite,  C.  J.,  at  p.  488.  2  p.  489. 

8  Clifford,  J.,  delivered  an  elaborate  concurring  judgment. 

*  14  How.  568. 


56  COMMERCE. 

ate  within  the  limits  of  the  grant  to  Moor  a  steamboat 
for  which  he  had  obtained  an  United  States  enrollment 
and  license,  was  enjoined  by  a  state  court  at  the  suit  of 
Moor,  and  the  decree  of  the  state  court  was  affirmed  on 
appeal   by   the  Supreme   Court  of  the  United   States. 
The  ground  of  decision  was,  that  any  commerce  that 
could    by   possibility    be    conducted    upon    the   upper 
Periobscot  was  of  necessity  purely  internal,  and  in  no 
sense  interstate,  commerce,  and  that  as  internal  com- 
merce it  was  properly  a  subject  of  state,  and  not  of 
federal,  regulation,  and  that  a  coasting  license  issued  by 
the  United  States  is  "  a  warrant  to  traverse  the  waters 
washing  or  bounding  the  coast  of  the  United   States," 
but  conveys  no  privileges    to  use  the  internal  waters 
of  a    state    in    the     prosecution    of    that    which     is 
not  interstate   commerce.      Daniel,   J.,   said,   p.    574, 
"  nor    can    it    be    properly    concluded,  that,  because 
the  products  of  domestic  enterprise  in  agriculture  or 
manufactures  or  in    the  arts  may  ultimately  become 
the  subject  of  foreign  commerce,  that  the  control  of  the 
means,  or  the  encouragements,  by  which  enterprise  is 
fostered  and  protected,  is  legitimately  within  the  import 
of  the  phrase  foreign  commerce,  or  fairly  implied  in 
any  investiture  of  the  power  to  regulate  such  commerce. 
.     .    .     Such  a  pretension  would  effectually  prevent  or 
paralyze  every  effort  at  internal  improvement  by  the 
several  states  ;  for  it  cannot  be  supposed  that  the  states 
would  exhaust  their  capital  and  their  credit  in  the  con- 
struction of  turnpikes,  canals,  and  railroads,  the  remu- 
neration derivable   from  which    and   all  control  over 
which  might  be  immediately  wrested  from  them,  be- 
cause such  public  works  would  be  facilities  for  a  com- 
merce which,  whilst  availing  itself  of  these  facilities, 
was  unquestionably  internal,  although  intermediately  or 
ultimately  it  might  become  foreign."     The  case  of  Lord 


NAVIGATION.  57 

v.  G.  N.  &  P.  S.  S.  Co.1  furnislies  another  illustration  of 
the  regulating  power  of  Congress  with  regard  to  com- 
merce. The  facts  were,  that  Section  428o  of  the  Re- 
vised Statutes  of  the  United  States,  as  defined  in  its 
application  by  Section  4289,  having  limited  to  the 
amount  of  their  interest  the  liability  of  vessel-owners  as 
common  carriers  of  goods,  and  the  steamer  Ventura, 
owned  by  the  G.  N.  &  P.  S.  S.  Co.,  and  plying  on  the 
high  seas  between  San  Francisco  and  San  Diego,  both  on 
the  coast  of,  and  in  the  state  of  California,  having  been 
totally  lost  while  carrying  goods  for  Lord,  he  brought 
suit;  the  company  set  up  by  plea  their  discharge  from 
liability  under  the  Revised  Statutes,  and  the  judge  at 
the  trial  having  directed  the  jury  that  the  statutes  exon- 
erated the  defendant,  if  they  should  find,  that  the  case 
came  within  the  terms  of  the  statute,  a  verdict  was  found 
for  the  defendant,  and  after  judgment  thereon,  a  bill  of 
exceptions  was  taken  to  the  judge's  direction,  but  the 
Supreme  C^urt  affirmed  the  judgment  of  the  court 
below,  on  the  ground  that  as  the  vessel,  though 
engaged  in  commerce  between  two  ports  in  the  same 
state,  navigated  the  high  seas,  she  necessarily  be- 
came subject  to  the  regulating  power  of  Congress.2 
The  commercial  power  as  affecting  navigation  also 
authorizes  congressional  legislation  with  regard  to  the 
sale  and  mortgaging  of  ships  and  requires  state  regula- 
tions on  that  subject  to  yield  when  they  conflict  with 
those  made  by  Congress.  Thus  in  White's  Bank  v. 
Smith,3  the  facts  were,  that  the  Act  of  Congress  of  29 
July,  1850,4  having  declared  that  no  mortgage  of  any 
vessel  of  the  United  States  shall  be  valid  against  any 

1  102  U.  S.  541. 

2  See  Norwich  Co.  r.  Wright,  13  Wall.  104,  and  The  City  of  Norwich,  118 
U.  S.  408,  in  further  illustration  of  Sections  4282-4289  Revised  Statutes  of  the 
United  States. 

8  7  Wall.  646.  *  9  Stat.  440. 


58  COMMERCE. 

person  other  than  the  mortgagor,  his  representatives, 
and  persons  having  any  actual  notice  thereof,  unless 
such  mortgage  "  be  recorded  in  the  office  of  the  collector 
of  customs  where  such  vessel  is  registered  or  enrolled," 
and  a  statute  of  the  state  of  New  York  having  declared 
that  no  chattel  mortgage  should  be  valid  as  against  the 
creditors  of  the  mortgagor,  or  as  "  against  subsequent 
mortgages  in  good  faith "  unless  originally,  and 
annually  thereafter,  filed  in  the  clerk's  office  in  "  the 
town  and  city  where  the  mortgagor  shall  then  reside," 
"  Hoyt,  a  resident  of  Buffalo  in  the  state  of  New  York, 
on  22  May,  1863,  executed  a  mortgage  to  White's  Bank 
of  his  schooner  Emmett,  and  the  mortgage  was  on  13 
June,  1863,  recorded  in  the  office  of  the  collector  of  cus- 
toms at  Buffalo,  where  the  Emmett  was  duly  enrolled, 
and  on  5  June,  1863,  the  mortgage  was  also  filed  in 
the  clerk's  office  of  the  city  of  Buffalo,  but  it  was  not 
filed  therein  annually  thereafter.  Hoyt  sold  the  vessel 
to  Zahm  of  San  dusky  in  the  state  of  Ohio,  and  on  2 
June,  1865,  Zahm  mortgaged  her  to  Smith,  and  the 
Emmett  having  been  duly  enrolled  in  the  office  of  the 
collector  of  customs  at  Sandusky,  the  mortgage  to  Smith 
was  recorded  in  that  office.  Thereafter,  the  Emmett 
was  sold  under  a  paramount  lien  for  sailors'  wages,  and 
the  balance  of  the  fund  remaining  after  payment  of  the 
sailors'  wages  was  claimed  by  both  Smith  and  White's, 
Bank.  The  court  below  decided  in  favour  of  Smith, 
but  the  Supreme  Court  reversed  that  decree,  and 
directed  distribution  to  White's  Bank,  on  the  ground 
that  ships  or  vessels  being  "  the  creations  of  the  legisla- 
tion of  Congress  "  and  instrumentalities  of  commerce, 
Congress  has,  as  incidental  to  its  power  of  regulating 
foreign  and  interstate  commerce,  the  power  of  prescrib- 
ing the  manner  of  selling  and  encumbering  ships, 
and  the  requisites  to  the  validity  of  conveyances  and 


INCIDENTAL    REGULATION.  59 

encumbrances  thereof,  and  the  laws  of  the  states,  when 
conflicting  with  such  federal  regulations,  must  give  wtiy, 
and,  therefore,  the  mortgage  to  White's  Bank,  being 
prior  in  point  of  time  to  the  mortgage  to  Smith,  and 
having  been  duly  recorded  under  the  act  of  Congress, 
was  not  invalidated  by  the  failure  to  renew  annually 
its  registration  in  the  clerk's  office  of  Buffalo  under  the 
law  of  New  York.  In  Aldrich  v.  ^Etna  Co.,1  the  rul- 
ing in  White's  Bank  v.  Smith  was  reiterated.  In  his 

o 

judgment  in  the  Lottawanna,2  Bradley,  J.,  intimates 
that  under  the  power  to  regulate  commerce,  Congress 
might  create  a  maritime  lien  for  supplies  and  repairs 
furnished  to  vessels  in  their  home  ports.  While  state 
legislatures  cannot  create  maritime  liens,  nor  confer 
jurisdiction  upon  their  courts  for  the  enforcement  of 
such  liens,  as  exempli  gratia,  liens  of  shippers  under 
contracts  of  affreightment  to  be  performed  on  naviga- 
ble waters  within  the  general  jurisdiction  of  admiralty,3 
nor  can  states  authorize  their  courts  to  entertain  suits 
for  damages  for  the  breach  of  contracts  for  the  trans- 
portation of  passengers  on  the  high  seas,4  nor  proceed- 
ings in  rem  in  cases  of  collision  on  navigable  waters,5 
yet,  as  the  general  maritime  law  does  not  recognize  liens 
in  favour  of  material  men  for  supplies  furnished  to 
vessels  in  their  home  ports,  or  for  materials  furnished  to 
ships  in  process  of  construction,  the  states  may  by  statutes 
authorize  such  liens,  and  those  liens  may  be  enforced 
by  proceedings  in  rem  in  the  admiralty  courts  of  the 
United  States.6  On  the  same  principle,  as  both  at  com- 
mon law  and  in  admiralty,  the  right  of  action  for 
a  tort  is  personal  and  dies  with  the  person  injured, 

1  8  Wall.  491.  8  21  Wall.  577. 

3  The  Belfast,  7  Wall.  624.  4  The  Moses  Taylor,  4  Wall.  411. 

5  The  Hine  v.  Trevor,  4  Wall.  556, 

6  Edwards  i'.  Elliott,  21  Wall.  532;  The  Lottawanna,  ibid.  558. 


60  COMMERCE. 

and  no  action  is  maintainable  for  a  tort  causing  death,1 
the  right  of  action  in  such  cases,  when  conferred  by  a 
state  statute,  is  enforcible  in  a  state  court  in  case  of 
death  caused  by  collision  in  navigable  waters,  which  are 
within  the  jurisdiction  of  the  state  and  also  within  the 
admiralty  jurisdiction  of  the  United  States,2  and  it  is 
also  enforcible  in  the  common  law  courts  of  the  United 
States3  and  in  the  admiralty  courts  of  the  United 
States,4  In  his  judgment  in  Sherlock  v.  Ailing5 
Field,  J.,  says,  "  it  is  true  that  the  commercial  power 
conferred  by  the  Constitution  is  one  without  limitation. 
It  authorizes  legislation  with  respect  to  all  the  subjects 
of  foreign  and  interstate  commerce,  the  persons  engaged 
in  it,  and  the  instruments  by  which  it  is  carried  on.  .  .  . 
The  power  to  prescribe  these  and  similar  regulations 
necessarily  involves  the  right  to  declare  the  liability 
which  shall  follow  their  infraction.  Whatever,  there- 
fore, Congress  determines,  either  as  to  a  regulation  or 
the  liability  for  its  infringement,  is  exclusive  of  state 
authority.  But  with  reference  to  a  great  variety  of 
matters  touching  the  rights  and  liabilities  of  persons 
engaged  in  commerce,  either  as  owners  or  navigators  of 
vessels,  the  laws  of  Congress  are  silent,  and  the  laws 
of  the  state  govern.  .  .  .  Until  Congress,  therefore, 
makes  some  regulation  touching  the  liabilities  of  par- 
ties for  marine  torts  resulting  in  the  death  of  the  per- 
sons injured,  we  are  of  the  opinion  that  the  statute  of 
Indiana  applies,  giving  a  right  of  action  in  such  cases 
to  the  personal  representatives  of  the  deceased,  and 

1  Higgins  v.  Bucher,  Yelv.  89;  Baker  v.  Boulton,  1  Camp.  493;    Ex  part e 
Gordon,  104  U.  S.  515  ;  Crapo  v.  Allen,  1  Sprague  184  ;  ««/.  cf.  Cutting  v.  Sea- 
bury,  ibid.  522. 

2  American  Steamboat  Co.  v.  Chase,  16  Wall.  522;   Sherlock  v.  Ailing,  93 
U.  S.  99. 

3  C.  &  N.  W.  Ry.  v.  Whitton,  13  Wall.  270. 

*  Ex  parte  Gordon,  104  U.  S.  515 ;  Ex  parte  Ferry  Co.,  ibid.  519. 
5  93  U.  S.  103. 


TKADE-MARKS.  61 

that,  as  thus  applied,  it  constitutes  no  encroachment 
upon  the  commercial  power  of  Congress." 

34.  There  are  three  cases  which  illustrate  clearly 
the  necessary  limitations  upon  the  exercise  by  Congress 
of  its  power  over  subjects  of  commerce,  and  the 
equally  necessary  limitation  of  the  implied  restrictions 
upon  state  action.  In  the  Trade-Mark  Cases,1  the 
question  was  as  to  the  constitutionality  of  the  acts  of 
Congress  of  14  August,  187G,2  and  8  July,  1870,3 
which  authorize  the  registration  in  the  Patent  Office  of 
devices  in  the  nature  of  trade-marks,  make  the  wrong- 
ful use  of  a  registered  trade-mark  a  cause  of  action  in 
a  civil  suit  for  damages,  and  punish  by  fine  and  im- 
prisonment the  fraudulent  use,  sale,  and  counterfeiting 
of  registered  trade-marks.  The  court  in  a  judgment 
read  by  Miller,  J.,  declined  to  decide,  "  whether  the 
trade- mark  bears  such  a  relation  to  commerce  in  gen- 
eral terms  as  to  bring  it  within  congressional  control, 
when  used  or  applied  to  the  classes  of  commerce  which 
fall  within  that  control,4  but  held,  that  the  statutes  in 
question,  not  being  limited  in  terms,  or  by  the  essential 
nature  of  their  subject-matter,  to  the  regulation  of 
trade-marks  in  their  relation  to  "commerce  with  foreign 
nations,  and  among  the  several  states,  and  with  the 
Indian  tribes,"  they  must  be  held  to  have  been  enacted  in 
"the  exercise  of  a  power  not  confided  to  Congress,"  and 
are,  therefore,  unconstitutional.  Prior  to  the  judg- 
ment in  the  trade-mark  cases,  some  of  the  Circuit 
Courts  of  the  United  States  had  sustained  the  consti- 
tutionality of  the  trade-mark  •  legislation,  and  in 
McLean  v.  Fleming,5  Clifford,  J.,  had  said,  "pro- 
tection for  lawful  trade-marks  may  be  obtained  by 
individuals,  firms,  or  corporations  entitled  to  the 

1  100  IT.  S.  82.         »  Kev.  Stat.  Sec.  4937  to  4947.         6  96  U.  S.  248. 
8  19  Stat.  141.         *  p.  95. 


62  COMMERCE. 

same,  if  they  comply  with  the  requirements  pre- 
scribed by  the  act  of  Congress.  In  Nathan  v.  Louisi- 
ana,1 the  facts  were  that  the  state  of  Louisiana  having, 
by  a  statute,  imposed  an  annual  tax  upon  "  money 
or  exchange  brokers,"  and  the  state  having  brought 
an  action  in  one  of  its  courts  against  Nathan,  a  broker 
dealing  in  foreign  and  interstate  bills  of  exchange, 
for  the  collection  of  taxes  unpaid,  obtained  a  judgment 
against  him,  which  was  affirmed  in  the  state  court 
of  last  resort,  and  also  by  the  Supreme  Court,  on  the 
ground  that  a  state  has  the  right  to  tax  its  own  citizens 
for  the  prosecution  of  any  business  within  the  state, 
although  that  business  may  consist  in  dealing  in  instru- 
ments of  commerce.2  In  People  v.  Commissioners,3  the 
facts  were.,  that  Haneman,  a  resident  of  New  York, 
having  been  assessed  for  taxation  under  the  laws  of  that 
state  on  his  personal  property  as  of  1  January,  1876, 
and  having  objected  to  the  validity  of  the  assessment  as 
affecting  the  bulk  of  his  property,  on  the  ground  that 

1  8  How  73. 

2  McLean,  J.,  said,  p.  80,  "  this  is  not  a  tax  on  bills  of  exchange.     Under 
the  law,  every  person  is  free  to  buy  or  sell  bills  of  exchange,  as  may  be  neces- 
sary in    his  business  transactions;  but  he  is  required  to    pay  the   tax    if  he 
engage  in  the  business  of  a  money,  or  an   exchange,  broker.     The  right  of  a 
state  to  tax  its  own  citizens  for  the  prosecution  of  any  particular  business  or 
profession,  within  the  state  has  not  been  doubted.  .     .     .  He  is  not  engaged  in 
commerce,  but  is  supplying  an  instrument  of  commerce.     He  is  less  connected 
with  it  than  the  ship  builder,  without  whose  labour  foreign  commerce  could 
not  be  carried  on.     .     .     .     The  taxing  power  of  a  state  is  one  of  its  attributes 
of  sovereignty,  and  where  there  has  been  no  compact  with  the  federal  govern- 
ment, or  cession  of  jurisdiction  for  the  purposes  specified  in  the  Constitution, 
this  power  reaches  all  the  property  and  business  within  the  state,  which  are 

>t  properly  denominated  the  means  of  the  general  government ;  and,  as  laid 
down  by  this  court,  it  may  be  exercised  at  the  discretion  of  the  state.  .  .  . 
Whatever  exists  within  its  territorial  limits  in  the  form  of  property,  real  or 
personal,  with  the  exceptions  stated,  is  subject  to  its  laws ;  and  also  the  num- 
berless enterprises  in  which  its  citizens  may  be  engaged.  These  are  subjects 
of  state  regulation  and  state  taxation,  and.  there  is  no  federal  power  under  the 
Constitution  which  can  impair  this  exercise  of  state  sovereignty." 

3  104  U.  S.  466. 


TAXATION    OF   SHIPS.  63 

that  property  was  "  continuously  employed  in  the  busi- 
ness of  exporting  cotton  from  the  United  States  of 
America  to  foreign  countries,"  and  "  in  purchasing  and 
paying  for  cotton  in  different  states  of  the  United 
States,"  it  was  argued  on  his  behalf  "  that  products  of 
the  United  States,  which  have  passed  the  Customs 
Department,  and  are  on  shipboard,  in  the  course  of 
exportation  to  a  foreign  market,  have  become  exports, 
and  are  no  longer  within  the  taxing  power  of  the  state  ; 
that  to  tax  money  invested  in  such  products  is,  in  effect, 
laying  an  impost  or  duty  on  exports  ;  and  that  a  tax  on 
capital  invested  in  the  products  of  the  United  States 
in  transit  from  one  state  to  another  for  purposes  of 
exportation,  or  on  money  used  and  employed  in  export- 
ing such  products,  is  an  unauthorized  interference  by 
the  state  with  the  regulation  of  commerce."1  The  court, 
however,  declined  to  determine  those  questions,  but 
affirmed  the  judgment  of  the  court  below  sustaining  the 
assessment,  on  the  ground  that,  if  the  capital  assessed 
was,  in  fact,  in  money  at  the  date  of  the  assessment,  a 
subsequent  investment  thereof  in  a  subject-matter  of 
commerce  could  not  relieve  that  capital  from  liability 
to  state  taxation,  and  that  the  burden  of  proof  resting 
on  Haneman,  he  had  failed  to  show  that  such  invest- 
ment of  his  capital  had  preceded  its  assessment  for  taxa- 
tion. 

35.  The  cases  as  to  state  taxation  of  ships  establish 
the  doctrine  that  while  a  state  may  tax  the  property  of 
those  persons,  natural  or  corporate,  who  may  be  by 
residence  subject  to  its  jurisdiction,  even  if  that  property 
be  invested  in  ships,  yet  a  state  may  not  tax  ships 
whose  owners  are  not  personally  subject  to  its  jurisdic- 
tion, and  which  come  within  its  territorial  limits  in  the 
pursuit  of  commerce.  Thus,  in  Hays  v.  The  Pacific 

1  Per  Harlan,  J.,  p.  468. 


64  COMMERCE. 

Mail  Steamship  Co.,1  the  question  was  as  to  the  liability 
to  taxation  under  the  laws  of  California  of  steamships, 
plying  between  the  ports  of  New  York  and  San  Fran- 
cisco, whose  home  port  and  the  place  of  whose  registry 
under  the  federal  statutes,  and  the  residence  of 
whose  owner  was  in  the  state  of  New  York,  and  the  court 
held  them  not  to  be  so  liable,  the  ground  of  decision  being, 
as  stated  by  Nelson,  J.,2  "  that  the  state  of  California 
had  no  jurisdiction  over  these  vessels  for  the  purpose 
of  taxation ;  they  were  there  but  temporarily  engaged 
in  lawful  trade  and  commerce,  with  their  situs  at  the 
home  port,  where  the  vessel  belonged,  and  where  the 
owners  were  liable  to  be  taxed  for  the  capital  invested, 
and  where  the  taxes  had  been  paid."  Daniel,  J.,  dis- 
sented on  the  ground  that  the  federal  court  had  no 
jurisdiction.  Campbell,  J.,  concurred  solely  on  the 
ground  "that  the  vessels  were  in  transitu,  having  no 
situs  in  California,  nor  permanent  connection  with  its 
internal  commerce."  In  Morgan  v.  Parham,3  the 
facts  raised  the  question  that  had  been  decided  in 
Hays  v.  The  Pacific  Mail  Steamship  Co.,  and,  in  addition 
thereto,  the  further  question  as  to  the  possible  effect  of 
a  temporary  enrollment,  under  the  Act  of  18  February, 
1793,4  of  a  steamship  in  a  port  other  than  its  home 
port  in  subjecting  it  to  state  taxation  in  the  port  of 
temporary  enrollment.  The  steamship,  "The  Frances,"' 
having  been  registered  in  the  port  of  New  York,  was 
temporarily  enrolled  in  the  port  of  Mobile,  was  em- 
ployed in  the  coasting  trade  between  Mobile  and  New 
Orleans,  and  while  the  owner,  Morgan,  was  a  citizen  of, 
and  a  resident  in,  New  York,  the  master  of  the  vessel 
and  the  agents,  who  managed  its  business,  were  resi- 
dents of  Mobile.  The  court  reiterated  the  doctrine 

1  17  How.  596.  *  16  Wall.  471. 

2  p.  599.  4  11  Stat.  306. 


TAX-ATION    OF    SHIPS.  65 

of  the  ILiys  Case,  and  held,  also,  that  there  was  nothing 
in  the  temporary  enrollment  of  the  vessel  "in  the  port 
of  Mobile,  that  affected  her  registry  in  New  York,  or 
her  ownership  in  that  place,  or  that  tended  to  subject 
her  to  the  taxation  of  the  state  of  Alabama."1  St. 
Louis  v.  Wiggins  Ferry  Co.,2  and  Gloucester  Ferry 
Co.  v.  Pennsylvania,3  also  follow  the  rule  laid  down  in 
Hays  v.  The  Pacific  Mail  Steamship  Co.,  but  the  con- 
verse of  the  doctrine  of  that  case  is  to  be  found  in 
Transportation  Co.  v.  Wheeling,4  where  the  facts  were, 
that  the  Transportation  Company,  being  incorporated 
under  the  laws  of  West  Virginia,  having  its  principal 
office  in  the  city  of  Wheeling  in  that  state,  and  owning 
certain  steamboats,  which  had  been  enrolled  and  li- 
censed under  the  laws  of  the  United  States,  and  which 
were  used  by  it  in  navigating  the  Ohio  between  Wheel- 
ing and  other  ports  on  that  river  in  the  states  of  West 
Virginia  and  Ohio,  was  taxed  by  the  city  of  Wheeling 
on  the  assessed  value  of  the  boats  as  part  of  the  per- 
sonal property  of  the  company  under  a  statute  of  West 
Virginia  authorizing  the  city  to  "assess,  levy,  and  col- 
lect an  annual  tax  for  the  use  of  the  city  on  personal 
property  in  the  city/'  and  the  company,  having  paid 
the  tax  under  protest,  brought  an  action  against  the 
city  in  a  state  court  to  recover  the  amount  of  the  tax, 
and  judgment  for  the  defendant  was  rendered  in  the 
court  below  and  affirmed  in  error,  the  court  holding 
that  the  tax  was  not  a  duty  on  tonnage,  because  not 
graduated  in  proportion  to  the  cubical  capacity  of  the 
vessel,  nor  a  regulation  of  commerce,  because  it  was 
only  assessed  upon  the  owner's  personal  property  in- 
vested in  the  vessel,  nor  an  infringement  upon  the 
privilege  conferred  by  the  enrollment  and  licensing  of 

1  Per  Hunt,  J.,  p.  476.  8  114  U.  S.  196. 

2  11  Wall.  423.  *  99  U.  S.  273. 

5 


66  COMMERCE. 

boats  under  the  statutes  of  the  United  States,  for  such 
enrollment  and  licensing  does  not  exempt  the  vessels  so 
enrolled  and  licensed  from  taxation  as  the  personal 
property  of  their  owner.  Wiggins  Ferry  Co.  v.  East 
St.  Louis,1  is  to  the  same  effect.  A  state  cannot  tax 
ships  or  vessels  as  instruments  of  commerce,  though 
they  be  owned  within  its  jurisdiction  ;  thus,  in  M  mm 
v.  New  Orleans,2  the  question  was  as  to  the  pow^r  of 
a  state  to  authorize  municipal  taxation  of  steam  tow- 
boats  licensed  under  the  coasting  laws  of  the  United 
States  and  employed  in  towing  vessels  between  the 
sea  and  the  port  of  the  municipality,  and  the  court 
held,  that  the  taxation  was  void  as  an  attempted  regu- 
lation of  interstate  commerce.  On  the  same  principle 
a  state  cannot  by  statute  require  the  payment  by  every 
vessel  coming  into  a  port  of  the  state  to  the  port  wardens 
of  the  sum  of  five  dollars,  whether  the  wardens  be,  or  be 
not,  called  on  to  perform  any  service  for  the  vessel.3 

36.  The  Constitution  in  express  terms  forbids  the 
states  to  impose  duties  on  tonnage.  Section  10  of 
article  I  of  the  Constitution  declares  that  "  no  state 
shall,  without  the  consent  of  Congress,  lay  any  duty  on 
tonnage."  The  word  "  tonnage/'  as  applied  to  Ameri- 
can shipping,  means  "their  entire  internal  capacity, 
expressed  in  tons  of  100  cubical  feet  each,  as  estimated 
and  ascertained  by  those  rules  of  admeasurement  and 
computation4  which  are  prescribed  by  the  acts  of  Con- 
gress.5 The  constitutional  prohibition  prevents  state 
taxation  of  "  water-crafts  plying  in  the  navigable  waters 
of  the  state  "...."  at  the  rate  of  one  dollar  per 
ton  of  registered  tonnage."6  Nor  can  a  state  require 


1  107  U.  S.  365.  112  U.  S.  69. 

3  Steamship  Co.  v.  Port  Wardens,  6  Wall.  31. 

4  State  Tonnage  Tax  Cases,  12  Wall.  212.  6  13  Stat.  70 ;  ibid.  444. 
e  State  Tonnage  Tax  Cases,  12  Wall.  204. 


TONNAGE    DUTIES. 


C7 


that  every  vessel  arriving  at  a  port  of  the  state  shall 
pay  to  the  port  wardens  a  fixed  sum  whether  the 
w.irdens  be,  or  be  not,  called  on  to  perform  any  services 
for  the  vessel;1  nor  compel  every  vessel  arriving  at 
any  quarantine  station  on  the  coast  of  the  state  to  pay 
a  fixed  sum  per  ton;2  nor  require  every  steamboat 
mooring  in  any  port  of  the  state  to  pay  a  sum  regulated 
by  the  tonnage  of  the  boat;3  nor  require  all  vessels 
entering  a  certain  port  to  load  or  unload,  or  making 
fast  to  any  wharf  therein,  to  pay  a  sum  regulated  by 
the  registered  tonnage  of  the  vessel.4  In  each  one  of 
these  cases,  the  taxation  imposed  by  the  state  would 
have  been  void  as  an  attempted  regulation  of  interstate 
c  >  uiiurce,  had  there  been  no  express  prohibition  of 
state  tonnage  duties. 

37.  The  cases  as  to  tnxation  of  water  transportation 
of  passengers  and  goods  further  illustrate  the  princi- 
ple. In  the  Head  Money  Cases,5  the  facts  were  that 
Congress  having  by  the  Act  of  3  August,  1882,6  imposed 
a  duty  of  fifty  cents  payable  "  for  each  and  every  pas- 
senger not  a  citizen  of  the  United  States  who  shall  come 
by  steam  or  sail  vessel  from  a  foreign  port  to  any  port 
within  the  United  States,"  certain  steamship  companies, 
having  landed  passengers  at  the  port  of  New  York,  and 
having  paid  the  duty  under  protest,  brought  actions  at 
law  against  the  collector  of  the  port  in  a  circuit  court 
of  the  United  States  to  recover  back  the  amounts  so 
paid,  and  judgments  rendered  for  the  defendant  were 
affirmed  in  the  Supreme  Court,  on  the  ground  that  the 
statute  imposing  the  duty  was  a  rightful  exercise  by 
Congress  of  the  power  vested  in  it  to  regulate  foreign 

1  Steamship  Co.  v.  Port  Wardens,  6  Wall.  31. 

2  Peete  v.  Morgan,  19  Wall.  581. 

8  Cannon  v.  New  Orleans,  20  Wall.  577. 

4  I.  S.  S.  Co.  v.  Tinker,  94  U.  8.  238. 

6  112  U.  S.  580.  6  23  Stat.  214. 


68  COMMERCE. 

commerce,  and  that,  while  the  burden  imposed  on  the; 
shipowner  being,  not  a  tax,  but  an  incident  of  a 
regulation  of  commerce,  is  not  subject  to  the  constitu- 
tional requirement  of  uniformity  of  operation  through- 
out the  United  States,  it  is,  nevertheless,  in  fact  uniform, 
for  "  it  operates  with  the  same  force  and  effect  in  every 
place  where  the  subject  of  it  is  found."1  The  correlative 
of  the  principle  enunciated  in  that  case  is  illustrated  by 
a  series  of  cases,  in  which,  after  considerable  variance  of 
judicial  opinion,  the  court  has  finally  so  settled  the  rule 
as  to  leave  it  no  longer  an  open  question.  In  New  York 
v.  Miln,2  it  was  held,  that  a  state  may  require,  under  a 
penalty,  the  master  of  every  passenger-carrying  vessel, 
on  arriving  at  any  port  within  the  state,  to  report  to  the 
state  authorities  the  name,  place  of  birth,  last  legal 
settlement,  age,  and  occupation  of  every  passenger,  the 
statute  under  consideration  being  one  enacted  by  New 
York  in  1824,  and  the  court  affirmed  its  validity  on  the 
ground  that  it  was  a  regulation,  not  of  commerce,  but  of 
police,  and  as  such  falling  within  the  reserved  powers 
of  the  state.  The  authority  of  the  case  is,  however, 
much  shaken  by  the  admirably  reasoned  dissenting 
judgment  of  Story,  J.,  with  whose  conclusions  Marshall, 
C.  J.,  concurred,3  and  the  result  reached  by  the  court 
on  the  precise  question  before  it  is  with  difficulty  recon- 
cilable with  the  later  cases  of  Sinnot  v.  Davenport,4  and 
Foster  v.  Davenport.5  The  next  cases  are  Smith  v. 
Turner,  Health  Commissioner  of  the  Port  of  New  York, 
and  Norris  v.  The  City  of  Boston,  reported  together 
under  the  title  of  the  Passenger  Cases,6  wherein  was 
brought  into  question  the  validity  of  statutes  of  the 
states  of  New  York  and  Massachusetts  imposing  taxes 

1  Per  Miller,  J.,  at  p.  594.  *  22  How.  227. 

2  11  Pet.  102.  6  22  How.  244. 

3  p.  161.  6  7  How.  283. 


PASSENGER    TAXES.  60 

upon  the  landing  of  alien  passengers  in  the  ports  of 
those  states.  In  the  first  of  the  Passenger  Cases,  Smith 
v.  Turner,  the  question  was  as  to  the  validity  of  a 
statute  of  New  York,  authorizing  the  Health  Commis- 
sioner to  demand,  and,  if  not  paid,  to  sue  for  and  recover, 
from  the  master  of  every  vessel  arriving  in  the  port  of 
New  York  from  a  foreign  port  "$1.50  for  each  cabin 
passenger,  and  $1.00  for  each  steerage  passenger,  mate, 
sailor,  or  mariner,  and  from  the  master  of  each  coasting 
vessel  25  cents  for  each  person  on  board."  In  the 
second  of  the  passenger  cases,  Norris  v.  The  City  of 
Boston,  the  question  was  as  to  the  validity  of  a  statute 
of  Massachusetts  enacted  in  1837,  and  imposing  a  duty 
of  $2.00  per  capita  on  alien  passengers  landed  at  any 
port  in  the  state.  The  effect  of  those  cases  can  best  be 
stated,  in  the  words  of  Miller,  J.,  who,  in  Henderson  v. 
Mayor  of  New  York,1  after  referring  to  the  fact  that  one 
of  the  statutes  under  consideration  in  the  Passenger- 
Cases,  though  not  the  same  statute  considered  in 
New  York  v.  Miln,  was  part  of  the  New  York 
system  of  regulation  of,  arid  taxation  upon,  the 
landing  of  passengers,  from  vessels,  said  that  the 
New  York  statute  "  authorized  the  Health  Commis- 
sioner to  demand,  and,  if  not  paid,  to  sue  for  and  re- 
cover, from  the  master  of  every  vessel  arriving  in  the 
port  of  New  York  from  a  foreign  port  one  dollar  and 
fifty  cents  for  each  cabin  passenger,  and  one  dollar  for 
each  steerage  passenger,  mate,  sailor,  or  mariner,  and 
from  the  master  of  each  coasting  vessel  twenty-five 
cents  for  each  person  on  board The  defend- 
ant Smith,  who  was  sued  for  the  sum  of  $295,  for  re- 
fusing to  pay  for  295  steerage  passengers  on  board  the 
British  ship  '  Henry  Bliss/  of  which  he  was  master, 
demurred  to  the  declaration  on  the  ground  that  the  act 

1  92.  U.  S.  266,  269. 


70  COMMERCE. 

was  contrary  to  the  Constitution  of  the  United  States, 
and  void.  From  a  judgment  against  him  affirmed  in 
the  Court  of  Errors  of  the  state  of  New  York,  he  sued 
out  a  writ  of  error,  on  which  the  question  was  brought 
to  this  court.  It  was  here  held,  at  the  January  Term, 
1849,  that  the  statute  was  repugnant  to  the  Constitution 
and  laws  of  the  United  States,  and  therefore,  void."  l 
Miller,  J.,  added,2  "so  far  as  the  authority  of  the  cases 
of  New  York  v.  Miln  and  the  Passenger  Cases  can  be 
received  as  conclusive,  they  decide,  that  the  require- 
ment of  a  catalogue  of  passengers,  with  statements  of 
their  last  residences  and  other  matters  of  that  character, 
is  a  proper  exercise  of  state  authority,  and  that  the  re- 
quirement of  the  bond,  or  the  alternative  of  money  of 
such  passenger  is  void,  because  forbidden  by  the  Con- 
stitution and  laws  of  the  United  States.  But  the  Pas- 
senger Cases  .  .  .  were  decided  by  a  bare  majority  of 
the  court.  Justices  McLean,  Wayne,  Catron,  McKinley, 
and  Grier  held  both  statutes  void,  while  Chief  Justice 
Taney  and  Justices  Daniel,  Nelson,  and  Woodbury 
held  them  valid.  Each  member  of  the  court  delivered 
a  separate  opinion,  giving  the  reasons  for  his  judgment, 
except  Judge  Nelson,  none  of  them  professing  to  be  the 
authoritative  opinion  of  the  court.  Nor  is  there  to  be 
found  in  the  reasons  given  by  the  judges,  who  consti- 
tuted the  majority,  such  harmony  of  views  as  would 
give  that  weight  to  the  decision,  which  it  lacks  by  rea- 
son of  the  divided  judgments  of  the  members  of  the 
court."  Therefore,  after  as  before  the  decision  of  the 
Passenger  Cases,  the  question  remained  an  open  one 
until  it  was  authoritatively  determined  by  the  unani- 
mous judgment  of  the  court  in  the  case  of  Henderson  v. 
The  Mayor  of  New  York.3  In  that  case  the  ques- 
tion was  as  to  the  validity  of  the  New  York  statutes, 

1  7  How.  572.  2  92  U.  S.  269.  3  92  U.  S.  259. 


PASSENGER    TAXES.  71 

which  had  been  so  amended  as  to  require  from  the 
owner,  or  consignee,  of  every  vessel  bringing  from  a 
foreign  port  into  a  port  of  the  state  passengers  not  being 
citizens  of  the  United  States  a  bond,  in  a  substantial 
penalty,  conditioned  to  indemnify  the  state  against  any 
expenditure  for  the  relief  or  support  of  the  particular 
passenger,  or,  in  default  of  such  bond,  the  payment  of  a 
duty  of  $1.50  on  the  importation  of  each  passenger. 
The  argument  was  that  "the  requirement  of  the  bond 
is  but  a  suitable  regulation  under  the  power  of  the  state 
to  protect  its  cities  and  towns  from  the  expense  of 
supporting  persons  who  are  paupers  or  diseased,  or 
helpless  women  and  children,  coming  from  foreign 
countries,"  and  that  the  payment  of  the  duty  in  lieu  of 
giving  the  bond  was  a  voluntary  payment,  and  not  a 
tax.  But  the  court  held,  that  the  intent  of  the  statute 
was  to  compel,  by  the  imposition  .  of  a  burdensome  al- 
ternative, the  payment  of  the  duty  ;  that  the  duty  was  in 
effect,  imposed  upon,  because  ultimately  payable  by,  the 
passengers,  and  it  was  therefore,  a  tax  upon  foreign 
commerce,  and,  as  such,  void.  In  the  case  of  the 
Commissioner  of  Immigration  v.  North  German 
Lloyd,1  a  similar  statute  of  Louisiana  was  held  to  be 
void.  In  Chy  Lung  v.  Freeman,2  it  was  held,  that  a 
statute  of  California,  requiring  under  similar  conditions 
a  bond  or  a  commutation  in  money,  not  for  all  passen- 
gers, but  only  for  certain  classes  of  passengers,  and  in 
particular  for  "  lewd  and  debauched  women,"  was,  on 
the  like  reasoning,  void.  In  People  v.  Compagnie 
Generate  Transatlantique,3  the  question  was  as  to  the 
validity  of  a  statute  of  New  York,  entitled  "  an  act  to 
raise  money  for  the  exercise  of  the  inspection  laws  of 
the  state  of  New  York,"  and  levying  "  a  duty  of  one 
dollar  for  each  and  every  alien  passenger,  who  shall  come 

1  92  U.  S.  259.  a  92  U.  S.  275.  3  107  U.  S.  59. 


72  COMMERCE. 

by  vessel  from  a  foreign  port  to  the  port  of  New  York, 
for  whom  a  tax  has  not  heretofore  been  paid,"  and  the 
court  held  the  statute  to  be  void,  on  the  grounds  that  the 
words  "  inspection  laws,"  "  imports,"  and  "  exports,"  as 
used  in  the  Constitution,  refer  not  to  the  persons,  but  to 
property,  and  that  the  case>  therefore,  came  within  the 
ruling  of  the  cases  which  have  been  cited.  The  rule, 
therefore,  as  to  the  taxation  of  passengers  coming  by 
water  into  the  ports  of  a  state  from  foreign  countries  and 
from  other  states  is  that  the  United  States  may,  and  the 
states  may  not,  directly  or  indirectly,  tax  such  passen- 
gers. The  application  of  the  same  principles  deter- 
mined the  case  of  the  Philadelphia  and  Southern  Steam- 
ship Co.  v.  Pennsylvania,1  in  which  the  question  was 
as  to  the  liability  of  the  gross  receipts  of  a  steamship 
company  derived  from  the  foreign  and  interstate  trans- 
portation of  persons  and  property  to  taxation  by  the 
state  incorporating  the  company,  and  the  court  decided 
against  the  liability,  overruling  the  case  of  the  State 
Tax  on  Railway  Gross  Receipts.2 

38.  The  cases  as  to  state  taxation  of  goods,  as  sub- 
jects of  interstate  commerce,  follow  in  the  same  line. 
The  first  case  is  Almy  v.  California,3  in  which  the  facts 
were  that  a  statute  of  California  having  imposed  a 
stamp  duty  "  on  bills  of  lading  for  the  transportation 
from  any  point  or  place  within  that  state  to  any  point 
or  place  without  the  state,"  of  gold  or  silver  coin,  and 
bars,  and  gold  dust,  and  Almy  having  been  indicted 
and  convicted  in  the  state  court  of  last  resort  for  viola- 
tion of  that  law,  in  that  he,  as  master  of  the  ship  Rat- 
tler, then  lying  in  the  port  of  San  Francisco,  received 
on  board  certain  gold  dust  for  transportation  to  New 
York,  and  issued  therefor  an  unstamped  bill  of  lading ; 
the  judgment  was  reversed  in  the  Supreme  Court  of  the 
1  122  U.  S,  326.  2  15  Wall.  284,  3  24  How.  169, 


INTERSTATE    COMMERCE.  73 

United  States,  on  the  grounds  that  the  statute  of  the 
state  was  void  for  repugnancy  to  the  constitutional  pro- 
hibition of  state  duties  on  imports  and  exports,  a  duty 
on  a  bill  of  lading  being  in  substance  a  duty  on  the 
merchandise  represented  by  that  instrument.  In 
Woodruff  v.  Parham,1  Miller,  J.,  in  delivering  the 
judgment  of  the  court  says,  "it  seems  to  have  escaped 
the  attention  of  counsel  on  both  sides,  and  of  the  Chief 
Justice  who  delivered  the  opinion,  that  the  case  was  one 
of  interstate  commerce.  No  distinction  of  the  kind  is 
taken  by  counsel,  none  alluded  to  by  the  court,  except 
in  the  incidental  statement  of  the  termini  of  the  voy- 
age  The  case,  however,  was  well  decided 

on  the  ground  taken  by  Mr.  Blair,  counsel  for  the  de- 
fendant, namely,  that  such  a  tax  was  a  regulation  of 
commerce,  a  tax  imposed  upon  the  transportation  of 
goods  from  one  state  to  another,  over  the  high  seas,  in 
conflict  with  that  freedom  of  transit  of  goods  and  per- 
sons between  one  state  and  another,  which  is  within  the 
rule  laid  down  in  Crandall  v.  Nevada,2  and  with  the 
authority  of  Congress  to  regulate  commerce  among  the 
states."  The  next  case  is  Woodruff  v.  Parham,3 
in  which  the  facts  were  that  the  city  of  Mobile  having, 
under  the  legislative  authority  of  the  state  of  Alabama, 
imposed  a  tax  upon  "  sales  at  auction,"  and  Woodruff 
having,  as  an  auctioneer,  sold  in  their  original  and 
unbroken  packages  merchandise,  the  product  of  states 
other  than  Alabama,  resisted  payment  of  the  tax,  and 
an  action  having  been  brought  in  a  court  of  the  state 
against  him,  to  recover  the  amount  of  the  tax,  judgment 
was  entered  against  him,  and  affirmed  in  the  Supreme 
Court,  on  the  ground  that,  as  the  constitutional  prohi- 
bition of  duties  on  imports  and  exports  has  reference 
not  to  articles  imported  from  one  state  to  another,  but 
1  8  Wall.  137.  8  6  Wall.  35,  3  8  Wall.  123. 


74  COMMERCE. 

only  to  articles  imported  from  a  foreign  country  into 
one  of  the  United  States,  or  from  one  of  those  states  to 
a  foreign  country,  the  tax  in  question  was  not  a  duty  on 
imports  or  exports;  and  that  as  the  tax  had  an  uniform 
application  to  all  "sales  at  auction  "  within  the  city  of 
Mobile,  and  did  not  discriminate  as  against  "  sales  at 
auction  "  of  the  products  of  other  states,  it  was  not  open 
to  objection  as  an  attempted  regulation  of  interstate 
commerce.1  In  Brown  v.  Houston,2  the  question  was  as 
to  the  liability  to  taxation  in  New  Orleans  under  the 
authority  of  the  state  of  Louisiana  of  certain  coal  which 
had  been  consigned  by  a  resident  of  Pennsylvania  to 
his  agent  in  New  Orleans  for  sale,  the  assessment  for 
taxation  being  made  under  a  statute  of  Louisiana  tax- 
ing at  the  rate  of  "  six  mills  on  a  dollar  of  the  assessed 
valuation  hereafter  to  be  made  of  all  property  situated 
within  the  state,"  and  the  coal,  when  assessed,  being 
afloat  in  the  port  of  New  Orleans  in  the  vessel  in  which 
it  had  been  transported  from  Pennsylvania.  The  court 
held  that  the  coal  was  properly  taxed,  inasmuch  as, 
under  the  authority  of  Woodruff  0.  Parham,  it  was  not 
an  "  import,"  and  by  reason  of  its  consignment  for  sale 
at  New  Orleans  and  its  delivery  at  that  port  for  that 
purpose,  it  had  become  merged  in  the  mass  of  property 
within  the  jurisdiction  of  the  state  of  Louisiana.  In 
Coe  v.  Errol,3  the  question  was,  "  whether  the  products 
of  a  state,  in  this  case  timber  cut  in  its  forests,  are  liable 
to  be  taxed  like  other  property  within  the  state,  though 
intended  for  exportation  to  another  state,  and  partially 
prepared  for  that  purpose  by  being  deposited  at  a  place 
of  shipment,  such  products  being  owned  by  persons 
residing  in  another  state."4  The  court  held,  that,  as  "  a 

1  Nelson,  J.,  dissented,  on  the  ground  that  the  tax  was  a  duty  on  imports, 
and  as  such  wrongfully  imposed. 

2  1 14  IT.  S.  622.  8  116  U.  S.  517. 
*  Per  Bradley,  J.,  at  p.  524. 


DISCRIMINATING    TAXES.  75 

state  has  jurisdiction  of  all  persons  and  things  within  its 
territory  which  do  not  belong  to  some  other  jurisdic- 
tion," such  as  the  persons  and  the  property  of  representa- 
tives of  foreign  governments,  and  "property  belonging 
to,  or  in  the  use  of,  the  government  of  the  United 
State,"  the  mere  fact  of  non-resident  ownership  does  not 
exempt  property  from  state  taxation;  and  that  property, 
the  product  of  a  state,  though  intended  for  transporta- 
tion to  another  state,  is  subject  to  taxation  in  common 
with  the  mass  of  property  in  the  state  until  "  actually 
started  in  the  course  of  transportation  to  another  state, 
or  delivered  to  a  carrier  for  such  transportation,"1  but 
such  property  is  not,  at  any  point,  subject  to  state  taxa- 
tion based  upon  its  intended,  or  actual,  transporta- 
tion to  another  state.  In  the  Daniel  Ball,2  Field,  J., 
said,  "  whenever  a  commodity  has  begun  to  move 
as  an  article  of  trade  from  one  state  to  another, 
commerce  in  that  commodity  between  the  states  has 
commenced."  Bradley,  J.,  in  Coe  v.  Errol,3  quoted 
this  dictum  of  Field  J.,  and  added,  a  but  this  movement 
does  not  begin  until  the  article  has  been  shipped,  or 
started  for  transportation  from  one  state  to  another. 

.  .  .  .  Until  shipped,  or  started  on  its  final  journey 
out  of  the  state,  its  exportation  is  a  matter  altogether  in 
fieri,  and  not  at  all  a  fixed  and  certain  thing." 

*  39.  The  rule  on  this  subject  is  further  illustrated  by 
those  cases  which  hold  that  a  state  cannot  by  taxation 
discriminate  against  either  the  natural  products  of,  or 
the  goods  manufactured  in,  other  states.  Thus  in  Ward 
v.  Maryland,4  a  statute  of  Maryland  having  required  all 
traders  resident  within  the  state  to  take  out  licenses,  and 
to  pay  therefor  fees  varying  from  $12  to  $15,  and  all 
non-resident  traders,  as  a  prerequisite  to  their  sale  of 
any  goods,  wares,  or  merchandise  whatsoever,  other  than 

1  p.  525.        2  10  Wall.  565.        s  116  U.  S.  528.        *  12  Wall.  418. 


76  COMMEKCE. 

agricultural  products  of  and  articles  manufactured  in 
Maryland,  to  take  out  a  license  and  to  pay  therefor 
annually  a  fee  of  $300,  and  Ward,  a  citizen  and  resi- 
dent of  New  Jersey,  having  been  indicted  in  a  court  of 
the  state  of  Maryland  and  convicted  of  selling,  without 
a  license,  goods  manufactured  in  a  state  other  than 
Maryland,  the  judgment  was  affirmed  in  the  state  court 
of  last  resort,  and,  on  a  writ  of  error,  reversed  in  the 
Supreme  Court,  on  the  grounds  that  the  license  tax  was, 
by  reason  of  its  discrimination  against  goods  grown  or 
manufactured  in  other  states,  an  attempted  regulation 
of  interstate  commerce,  and  as  such  void,  and  that  it 
was  also  in  contravention  of  the  constitutional  declara- 
tion, that  "  the  citizens  of  each  state  shall  be  entitled  to 
all  the  privileges  and  immunities  of  citizens  in  the 
several  states-."  Clifford,  J.,  delivered  the  judgment  of 
the  court.  Bradley,  J.,  concurred ;  but  held l  that  the 
license  fee  would  be  equally  void,  "  although  it  imposed 
upon  residents  the  same  burden  for  selling  goods  by 
sample  as  is  imposed  on  non-residents.  Such  a  law 
would  effectually  prevent  the  manufacturers  of  the 
manufacturing  states  from  selling  their  goods  in  other 
states  unless  they  established  commercial  houses  therein, 
or  sold  to  resident  merchants,  who  chose  to  send  their 
orders.  It  is,  in  fact,  a  duty  upon  importation  from  one 
state  to  another,  under  the  name  of  a  tax." 

Following  in  the  line  of  Ward  v.  Maryland,  state 
laws  have  been  held  void,  requiring  payment  of  a  tax 
or  license  fee  by  vendors  of  merchandise  "not  the 
growth,  produce,  or  manufacture  "  of  the  state,  no  tax 
or  license  fee  being  required  of  vendors  of  domestic 
merchandise  ;2  authorizing  a  municipality  to  impose  on 
vessels  laden  with,  the  products  of  other  states  a  fee  for 

1  p.  432. 

2  Welton  v.  Missouri,  91  U.  S.  275  ;  Webber  v.  Virginia,  103  U.  S.  344. 


DISCRIMINATING     TAXES.  77 

their  use  of  the  public  wharves,  when  vessels  laden  with 
the  products  of  the  state  are  permitted  to  use  such 
wharves  without  charge  ;x  or  requiring  a  "  non-resident 
merchant,  desiring  to  sell  by  sample  in  the  state,  to  pay 
for  a  license  to  do  that  business  a  sum  to  be  ascertained 
by  the  amount  of  his  stock  in  trade  in  the  state  where 
he  resides,  and  in  which  he  has  his  principal  place  of 
business."2  In  Walling  v.  Michigan,3  the  facts  were, 
that  a  statute  of  Michigan,  enacted  in  1875,  having 
required  payment  of  a  license  tax  by  every  person  mak- 
ing sale  within  the  state  of  spirituous  or  malt  liquors 
for  account  of  persons  not  having  their  principal  places 
of  business  within  the  state,  there  being  no  such  require- 
ment of  agents  of  domestic  dealers,  and  a  statute  of 
1879,  as  amended  by  a  statute  of  1881,  having  taxed  to 
a  greater  amount  the  manufacturers  of  or  dealers  in 
domestic  liquors,  and  Walling  having  been  convicted 
in  a  court  of  the  state  of  Michigan  under  the  statute  of 
1875  of  selling  without  a  license,  spirituous  liquors  in 
the  state  of  Michigan  on  behalf  of  a  firm  having  its 
principal  place  of  business  in  Chicago  in  the  state  of 
Illinois,  and  the  judgment  having  been  affirmed  in 
the  state  court  of  last  resort,  he  brought  the  record 
to  the  Supreme  Court  of  the  United  States,  where 
the  judgment  was  reversed,  on  the  ground  that  the 
statute  of  1875,  by  its  imposition  of  a  tax  on  each  sell- 
ing agent  of  a  foreign  dealer,  discriminated  "against 
persons  for  selling  goods  brought  into  the  state  from 
other  states  or  countries,"4  and  that  as  the  statute  of. 
1881  imposed  a  single  tax  only  on  the  manufacturer  or 
dealer,  and  did  not  tax  his  selling  agents,  "  the  tax  im- 

1  Guy  v.  Baltimore,  100  U.  S.  434. 

2  Corson  ?>.  Maryland,  120  U.  S.  502.     The  statement  as  to  the  effect  of  the 
Maryland  statute  is  quoted  from  the  concurring  judgment  of  Waite,  C.  J.,  at 
p.  506. 

3  116  U.  S.  446.  *  Per  Bradley,  J.,  at  p.  454. 


78  COMMERCE. 

posed  by  the  Act  of  1875  is  not  imposed  on  the  same 
class  of  persons  as  is  the  tax  imposed  by  the  Act  of 
18SL,"1  and  the  later  statute,  therefore,  cannot  operate 
to  relieve  the  discrimination  created  by  the  earlier 
statute.  In  Machine  Co.  v.  Gage,2  the  facts  were,  that 
the  laws  of  Tennessee,  as  construed  by  the  Supreme 
Court  of  that  state,  having  levied  a  "tax  upon  all  ped- 
lars of  sewing-machines,  without  regard  to  the  place  of 
growth  or  produce  of  material  or  manufacture,"  and  an 
agent  of  the  Howe  Machine  Co.,  of  Bridgeport  in  the 
state  of  Connecticut,  having  made  sales  in  Tennessee  of 
sewing-machines  manufactured  by  his  company  in  Con- 
necticut, and  having  paid  the  tax  under  protest,  the 
company  brought  suit  in  a  state  court  to  recover  back 
the  amount  of  the  tax,  and  judgment  against  the  com- 
pany in  the  state  court  of  last  resort  was  affirmed  in  the 
Supreme  Court  on  the  ground,  as  stated  by  Swayne,  J.,3 
that  the  law  of  the  state  made  no  discrimination.  "  It 
applies  alike  to  sewing-machines  manufactured  in  the 

state  and   out  of  it The    state,   putting  all 

such  machines  upon  the  same  footing  with  respect  to 
the  tax  complained  of,  had  an  unquestionable  right  to 
impose  the  burden."  Of  course,  if  discrimination 
against  the  sale  within  a  state  of  articles  of  non-domestic 
growth  or  manufacture  be  the  test  of  the  invalidity  of  a 
tax,  it  is  not  material  that  the  mode  of  collecting  the 
tax  differ,  if  its  amount  be  the  same,  on  articles  of  do- 
mestic, and  of  foreign,  produce  and  make;  thus 
•in  Hinson  v.  Lott,4  it  was  held  that  there  was  no 
liscrimmation  in  a  statute  requiring  from  vendors 
of  liquor  introduced  from  another  state  prepayment 
of  a  tax  of  fifty  cents  per  gallon  and  imposing  on 
manufacturers  of  domestic  liquors  a  tax  of  the  same 

1  Per  Bradley,  J.,  at  p.  459.  3  p.  679. 

2  100  U.  S.  676.  4  8  Wall.  148. 


DISCRIMINATING    TAXES.  79 

amount   per   gallon,  on    returns   made   from    time  to 
time.1     The   case   of  Bobbins  v.  Shelby  County  Tax- 
ing District2  gives  the  sanction  of  the  judgment  of 
the  court  to  the  dictum  of  Bradley,  J.,  in   his  concur- 
ring opinion  in  Ward  v.  Maryland,3  and  in  so   doing 
establishes    a   principle  very  different    from    that    on 
which  the  judgment  in  Machine  Co.  v.  Gage  was  based. 
The  facts  in  the  Bobbins  case  were,  that  a  statute  of 
Tennessee  having  required  all  drummers,  etc.,  under  a 
penalty  to  pay  a  license  fee   before  selling  goods  in 
Shelby  county,  and  Bobbins,  a  drummer  acting  on  be- 
half of  a  firm  doing  business  in  Cincinnati  in  the  state 
of  Ohio,  having  been  convicted  in  a  court  of  the  state 
of  Tennessee  of  selling  goods  without  a  license,  in  vio- 
lation of  the  statute,  and  the  state  court  of  last  resort 
having  affirmed  the  judgment,  the  Supreme   Court  of 
the  United  States  reversed  the  judgment,  for  the  reasons, 
as  stated  by  Bradley,  J.,  that  a  state  statute  levying  a 
tax  or  imposing  any  other  restrictions  4;  upon  the  citi- 
zens or  inhabitants  of  other  states,  for  selling,  or  seek- 
ing to  sell  their  goods  in  such  state  before  they  are 
introduced   therein  "4   is   an   attempted   regulation    of 
interstate  commerce,  and   as   such  void.     The  ground 
of   the   decision,    therefore,    is    that    the    license    fee 
in   question    is   not   a   tax  upon  goods  brought  from 
another   state  within   the  jurisdiction    of  the   taxing 
state,  and  there  subjected  to  taxation  in  common  with 
the  mass  of  property  in  that  state,  but  it  is  a  tax  which 
stands  as  a  barrier  in   the  way  of  the  manufacturer  or 
merchant  of  another  state,  and  hinders  him  in  the  intro- 
duction of  his  goods  into  the  taxing  state.     In  this 
view,  it  is  no  answer  to  say,  as  Waite,  C.  J.,  and  Field 

1  Nelson,  J.,  dissented  on  the  grounds  stated  in  his  dissenting  judgment  in 
Woodruff  v.  Parham,  8  Wall.  140. 

2  120  U.  S.  489.  3  12  Wall.  432.  4  p.  494. 


80  COMMERCE. 

and  Gray,  JJ.,  said  in  the  dissenting  judgment  of  the 
Ciiief  Justice,1  that  "  if  citizens  of  other  states  cannot  be 
taxed  in  the  same  way  for  the  same  business,  there  will 
ba  discrimination  against  the  inhabitants  of  Tennessee 
and  in  favour  of  those  of  other  states,"  for  the  conclu- 
sive reply  is,  that,  while  a  state  may,  without  discrimi- 
nation against  interstate  commerce,  regulate  its  internal 
commerce,  it  cannot,  with  or  without  discrimination, 
regulate  that  interstate  commerce  which  has  not  been 
terminated  by  the  delivery  of  its  subject  within  the 
jurisdiction  of  the  taxing  state.  In  Tiernan  v.  Rinker,2 
the  facts  were,  that  a  statute  of  Texas  having  imposed 
an  annual  tax  on  the  sale  of  "  spirituous,  vinous,  malt, 
and  other  intoxicating  liquors,"  with  a,  proviso  that  the 
tax  should  not  operate  upon  "wines  or  beer  manu- 
factured in  this  state,"  Tiernan,  being  engaged  in  sell- 
ing "spirituous,  vinous,  malt,  and  other  intoxicating 
liquors,"  including  "  wines  and  beers,"  "  not  of  the 
manufacture  of  the  state,"  brought  suit  in  an  equity 
court  of  the  state  to  enjoin  the  enforcement  of  the  tax, 
on  the  ground  "that  the  statute  is  invalid  in  that  it  dis- 
criminates in  favour  of  wines  and  beers  manufactured 
in  the  state  and  against  those  which  are  manufactured 
elsewhere,"  and  judgment  on  demurrer  against  the 
plaintiff  was  affirmed  in  the  state  court  of  last  resort 
and  in  the  Supreme  Court,  on  the  grounds,  as  stated 
by  Field,  J.,  that  while  "  the  statute  of  Texas  is  inopera- 
tive, so  far  as  it  makes  a  discrimination  against  wines 
and  beer  imported  from  other  states  when  sold  separately 
from  other  liquors,"  yet  the  plaintiff,  being  engaged  in 
the  sale  of  liquor  other  than  beer  or  wines,  and  the 
statute  making  no  discrimination  in  favour  of  other 
liquors  of  home  manufacture,  the  plaintiff  was  right- 
fully taxed.  Of  course,  he  who  claims,  under  the  cases 

i  p.  501.  2  102  U.  S.  m 


DUTIES    ON    EXPORTS.  81 

cited,  exemption  from  the  burden  of  state  taxation,  must 
prove  his  case;  thus,  in  Downham  v.  Alexandria 
Council,1  the  council  of  the  city  of  Alexandria  in  the 
state  of  Virginia  having  imposed  a  license  tax  of  $20<J 
upon  dealers  in  beer  and  ale  not  manufactured  in  the 
city  but  brought  there  for  sale,  and  Downham  assert- 
ing the  invalidity  of  the  tax  as  affecting  ale  and 
beer  manufactured  in  a  foreign  country,  or  in  another 
state  of  the  Union,  but  having  proved  only  that  the  ale 
and  beer,  in  which  he  dealt,  were  noc  manufactured  in 
the  city  of  Alexandria,  the  court  dismissed  the  writ  of 
error  to  the  judgment  of  the  state  court  which  had  held 
him  liable  to  the  payment  of  the  tax,  on  the  ground  that 
the  record  raised  no  federal  question. 

40.  The  United  States  are  expressly  forbidden  to  tax 
exports  by  section  9  of  article  I  of  the  Constitution, 
which  declares  that  "  no  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  state."  This  constitutional 
restraint  upon  the  federal  power  has  been  subjected  to 
judicial  consideration  in  only  two  cases.  In  Pace  v. 
Burgess2  the  question  was,  whether  or  not  the  charge 
for  stamps  required  by  the  act  of  Congress  of  July  20, 
1868,3  and  6  June,  1872,4  to  be  placed  by  the  manufac- 
turers upon  snuff  and  tobacco  manufactured,  not  for 
domestic  use,  but  for  exportation  to  foreign  countries, 
constituted,  in  the  constitutional  sense  of  the  term,  "  a 
tax  or  duty  "  "  on  articles  exported  from  any  state," 
and  the  court  held,  that  the  requirement  of  such  stamps 
was  not  a  method  of  imposing  an  export  tax  or  duty, 
but  was  simply  the  means  devised  for  the  prevention  of 
fraud  by  separating  and  identifying  the  tobacco  intended 
for  exportation  from  that  which  was  intended  for 
domestic  use,  and  of  relieving  the  former  from  the  inter- 

1  10  Wall.  173.  3  15  Stat.  157. 

2  92  U.  S.  372.  *  17  id.  254. 
6 


82  COMMEKCE. 

nal  revenue  taxation  to  which  the  latter  was  subjected, 
and  that  the  price  of  such  stamps  was,  in  effect,  nothing 
more  than  a  charge  for  the  services  rendered  by  the 
government  in  effecting  the  segregation  of  the  tobacco 
intended  for  exportation,  and,  therefore,  in  no  sense  a 
tax  or  duty  on  exports.  In  Turpin  v.  Burgess,1  the 
court  re-affirmed  the  doctrine  of  Pace  v.  Burgess,  and 
decided  further,  that  the  stamps  being  required  to  be 
affixed  to  the  tobacco  before  it  left  the  factory  could  not 
constitute  a  tax  on  exports  because  the  tobacco  was  not 
then  in  course  of  exportation,  however  much  the  manu- 
facturer might  then  intend  to  ultimately  export  it ;  and 
in  support  of  that  view,  Bradley,  J.,  referred  to  Coe  v. 
Errol,2  wherein  it  was  held  that  "  goods  intended  for 
exportation  to  another  state  are  liable  to  taxation  as 
part  of  the  general  mass  of  property  of  the  state  of  their 
origin  until  actually  started  in  a  course  of  transporta- 
tion to  the  state  of  their  destination,  or  delivered  to  a 
common  carrier  for  that  purpose." 

41.  Section  10  of  article  I  of  the  Constitution  declares, 
that  "  no  state  shall,  without  the  consent  of  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  in- 
spection laws,  and  the  net  proceeds  of  all  duties  and 
imposts  laid  by  any  state  on  imports  and  exports  shall 
be  for  the  use  of  the  treasury  of  the  United  States  and 
all  such  laws  shall  be  subject  to  the  revision  and  con- 
trol of  Congress."  In  Brown  v.  Maryland,3  it  was  held 
that  a  state  statute,  requiring  all  importers  of  foreign 
goods  by  the  bale  or  package,  etc.,  and  other  persons 
selling  the  same  by  wholesale,  bale,  or  package,  etc.,  to 
take  out  a  license,  paying  $50  therefor,  and,  for  neglect 
or  refusal  to  take  out  the  license,  subjecting  them  to 
certain  forfeitures  and  penalties,  was  void  for  repug- 

1  117  U.  S.  504.  2  116  U.  S.  517.  8  12  Wheat.  419. 


TAXES   ON   IMPORTS.  83 

nancy  both  to  the  commerce  clause  of  the  Constitution, 
and  to  the  express  prohibition  of  state  duties  on  im- 
ports and  exports  save  under  the  specific  exception  in 
the  10th  section  of  article  I  of  the  Constitution,  the 
ground  of  decision  being  that  the  power  to  regulate 
commerce  with  foreign  nations  includes  the  power  to 
impose  duties  on  the  importation  of  goods  therefrom, 
and,  on  condition  of  the  payment  of  the  duties,  to 
license  the  importation  and  sale  of  the  goods  within 
any  state,  and  that  a  penalty  inflicted  by  a  state  on  the 
importer  for  selling  the  goods  as  importer  in  the  origi- 
nal form  and  package  in  which  they  are  imported,  and 
before  they  are  incorporated  with  the  mass  of  the  prop- 
erty in  the  country,  is  an  interference  with  the  free- 
dom of  importation,  and  as  such  an  usurpation  of 
power  vested  by  the  Constitution  exclusively  in  the 
government  of  the  United  States.1  The  doctrine 
of  Brown  v.  Maryland  has  been  applied  in  later 
cases.  Thus  it  has  been  held,  in  Low  v.  Austin,2  that 
a  state  cannot  impose  an  ad  valorem  tax  on  imported 
goods  remaining  in  their  original  cases  in  the  hands  of 
the  importer,  though  a  similar  tax  be  imposed  on  all 
merchandise  in  the  state;  and,  in  Cook  v.  Pennsyl- 
vania,3 that  a  state  cannot  tax  an  auctioneer's  sales  of 
imported  goods  in  their  original  cases  sold  by  him  for 
the  account  of  the  importers  thereof.4  In  The  State 

1  Marshall.  C.  . I.,  said,  p.  446,  "Commerce  is  intercourse:  one  of  its  most 
ordinary  ingredients  is  traffic"     It  is  inconceivable  that  the  power  to  authorize 
this  traffic,  when  given  in  the  most  comprehensive  terms,  with  the  intent 
that  its  efficacy  should  be   complete,   should  cease  at  the  point  when  its  con- 
tinuance is  indispensable  to  its  value Sale  is  the  object  of  impor- 
tation, and  is  an  essential  ingredient  of  that  intercourse,  of  which  importa- 
tion constitutes  a  part.     It   is  as  essential  an  ingredient,  as  indispensable  to 
the  existence  of  the  entire  thing,  then,  as  importation  itself.     It  must  be  con- 
sidered as  a  component  part  of  the  power  to  regulate  commerce.    Congress  has 
a  right,  not  only  to  authorize  importation,  but  to  authorize  the  importer  to  sell." 

2  13  Wall.  29.  3  97  U.  S.  566. 

4  In  Groves  v.  Slaughter,  15  Pet.  449,  it  was  argued  that  interstate  traffic  in 


84  COMMERCE. 

Tax  on  Railway  Gross  Receipts,1  it  was  held,  that  state 
taxation  of  the  gross  receipts  of  a  railway  is  not  taxa- 
tion of  imports  or  exports,  although  those  gross  receipts 
include  freights  from  the  transportation  of  merchandise, 
which  has  come  into  a  state  from  a  foreign  country,  or 
which  is  in  course  of  transportation  within  the  state, 
for  the  purpose  of  being  exported  therefrom,  but  that 
case,  having  been  shaken,  as  an  authority,  by  the  case 
of  Fargo  v.  Michigan,2  has  been  overruled  by  Philadel- 
phia and  Southern  Steamship  Co.  v.  Pennsylvania,3 
and  state  taxation  of  the  gross  receipts  of  the  transpor- 
tation of  imported  or  exported  goods,  either  by  land  or 
water,  is  no  longer  permissible.  In  Almy  v.  Cali- 
fornia,4 the  court  held  that  a  stamp  duty  imposed  by  a 
state  on  bills  of  lading  for  gold  or  silver  fell  within  the 
constitutional  prohibition  of  duties  on  exports,  not 
noticing  in  the  judgment  the  argument  which  had  been 
made  at  the  bar,  that  the  stamp  duty  in  question  was 
also  unconstitutional  as  a  regulation  of  commerce. 
Miller,  J.,  in  his  judgment  in  Woodruff  v.  Parham,5 
pointed  out  that  the  question  in  Almy  v.  California 
was  really  one  of  interstate,  and  not  of  foreign,  com- 
merce, and  he  added,  "  the  case,  however,  was  well 
decided  on  the  ground  taken  by  Mr.  Blair,  counsel  for 
defendant,  namely: — that  such  a  tax  was  '  a  regulation  of 
commerce/  a  tax  imposed  upon  the  transportation  of 
goods  from  one  state  to  another,  over  the  high  seas,  in 
conflict  with  that  freedom  of  transit  of  goods  and  per- 
sons between  one  state  and  another,  which  is  within  the 
rule  laid  down  in  Crandall  v.  Nevada,6  and  with  the 

slaves  was,  as  interstate  commerce,  subject  to  regulation  by  Congress  and  ex- 
empt from  state  regulation,  but  the  court  did  not  decide  the  question,  for  the 
case  went  off  on  other  points. 

1  15  Wall.  284.  4  24  How.  169. 

2  121  U.  S.  230.  5  8  Wall.  138. 

3  122  U.  S.  326.  6  6  Wall.  35. 


IMPORTS    DEFINED.  85 

authority  of  Congress  to  regulate  commerce  among  the 
states."  It  must  also  be  remembered  that  the  words 
"imports "  and  "exports"  include  only  merchandise 
brought  from  foreign  countries  into  the  United  States 
or  carried  from  the  United  States  to  foreign  countries, 
and  not  merchandise  moved  from  one  state  into  another 
state,  and  therefore  a  state  may  tax  merchandise  of  the 
latter  description,  provided  there  be  in  such  taxation 
no  discrimination  as  against  the  growth  or  products  of 
other  states  nor  any  regulation  of  interstate  commerce.1 
T!ie  word  "imports"  in  the  constitutional  sense  of 
the  term,  as  applied  to  goods  brought  from  a  foreign 
country,  does  not  include  merchandise,  which,  by  the 
terms  of  the  contract  of  purchase,  is  not  to  be  at  the 
risk  of  the  purchaser  until  delivered  to  him  in  the  port 
of  entry,  and  such  goods,  though  in  their  original 
packages,  may  be  taxed  by  a  state  in  whose  port  their 
contract  of  purchase  is  completed  by  delivery.2  The 
power  vested  in  Congress  to  regulate  commerce  carries 
with  it  also,  by  implication,  the  power  of  punishing 
the  commission  of  acts  within  the  territory  of  a  state 
which  interfere  with,  obstruct,  or  prevent  the  transpor- 
tation of  goods  by  sea  from  foreign  countries.  Thus  in 
United  States  v.  Coombs,3  the  ninth  section  of  the  Act 
of  Congress  of  3  March,  1825,  having  forbidden  under 
penalty  of  fine  and  imprisonment,  the  plundering  of 
merchandise  from  any  ship  in  distress  or  cast  away  in 
any  place  within  the  admiralty  or  maritime  jurisdic- 
tion of  the  United  States,  and  Coombs,  on  an  indict- 
ment under  that  law,  having  been  convicted,  on  proof 
that  he  had  stolen  goods  from  the  ship  Bristol  cast 
away  above  high- water  mark  at  Rockaway  Beach  in 
the  state  of  New  York,  the  conviction  was  sustained, 

1  Woodruff  v.  Parham,  8  Wall.  123;  Brown  v.  Houston,  114  U.  S.  622. 

2  Waring  t.  The  Mayor,  8  Wall.  110.  3  12  Pet.  72. 


86  COMMERCE. 

the  court  holding  that  the  statute  in  question  was  right- 
fully enacted  in  the  exercise  of  the  power  to  regulate 
commerce. 

In  Gibbons  v.  Ogden,1  Marshall,  C.  J.,  said,  "the 
object  of  inspection  laws  is  to  improve  the  quality  of 
articles  produced  by  the  labour  of  a  country;  to  fit 
them  for  exportation ;  or,  it  may  be,  for  domestic  use. 
They  act  upon  the  subject  before  it  becomes  an  article 
of  foreign  commerce,  or  of  commerce  among  the  states, 
and  prepare  it  for  that  purpose.  They  form  a  portion 
of  that  immense  mass  of  legislation  which  embraces 
everything  within  the  territory  of  a  state,  not  surren- 
dered to  the  general  government;  all  which  can  be 
most  advantageously  exercised  by  the  states  them- 
selves."2 In  Turner  v.  Maryland,3  Blatchford,  J., 
said,  that  the  "recognized  elements  of  inspection  laws 
have  always  been  quality  of  the  article,  form,  capacity, 
dimensions,  and  weight  of  package,  mode  of  putting  up 
and  marking  and  branding  of  various  kinds,  all  these 
matters  being  supervised  by  a  public  officer  having 
authority  to  pass,  or  not  pass,  the  article  as  lawful 
merchandise,  as  it  did,  or  did  not,  answer  the  prescribed 
requirements.  It  has  never  been  regarded  as  necessary, 
and  it  is  manifestly  not  necessary,  that  all  those  ele- 
ments should  coexist  in  order  to  make  a  valid  inspec- 
tion law.  Quality  alone  may  be  the  subject  of  the  in- 
spection without  other  requirement,  or  the  inspection 
may  be  made  to  extend  to  all  the  above  matters.  When 
all  are  prescribed,  and  then  inspection  as  to  quality  is 
dropped  out,  leaving  the  rest  in  force,  it  cannot  be  said 
to  be  a  necessary  legal  conclusion  that  the  law  has 
ceased  to  be  an  inspection  law." 

1  9  Wheat.  203. 

2  For  a  reference  to  state  inspection  laws,  see  note  to  Gibbons  v.  Ogden,  9 
Wheat.  119,  and  note  to  Turner  v.  Maryland,  107  U.  S.  51  et  seq. 

3  107  U.  S.  55. 


INSPECTION    LAWS.  87 

111  Turner  v.  Maryland,1  the  question  was  as  to  the 
constitutionality  of  a  statute  of  the  state  of  Maryland, 
prohibiting  under  a  penalty  the  exportation  in  hogs- 
heads of  tobacco  raised  in  the  state,  without  delivery  at 
a  state  tobacco  warehouse,  there  to  be  inspected,  num- 
bered, recorded,  weighed,  and  marked,  and  without 
payment  of  certain  specified  fees,  called  "outage,"  as 
charges  for  the  performance  of  service  by  the  state's 
officials.  The  court  decided  in  favour  of  the  validity  of 
the  statute,  on  the  ground  that  it  was  enacted  in  the  exer- 
cise of  the  state's  power  to  lay  such  duties  on  exports  as 
"  may  be  absolutely  necessary  for  executing  its  inspection 
laws,"  similar  laws  having  been  at  various  times  enacted 
by  many  of  the  states,  and  Congress  never  having 
claimed  the  net  proceeds  of  such  duties,  nor  exercised 
its  revisory  and  controlling  power.  The  words  "inspec- 
tion laws,"  "imports,"  and  "exports"  as  used  in  the 
Constitution  having  exclusive  reference  to  property  as 
distinguished  from  persons,2  a  state  per  capita  tax  on 
immigrants  cannot  be  sustained  as  a  means  of  executing 
the  inspection  laws  of  a  state.3 

42.  The  result  of  the  cases  with  regard  to  improve- 
ments of  navigation  is  that,  while  Congress  may,  in  the 
exercise  of  its  power  to  regulate  commerce,  authorize  or 
prohibit  improvements  to  the  waterways  of  foreign  or 
interstate  commerce,  a  state  may,  if  Congress  does  not 
prohibit,  improve  such  waterways  within  its  jurisdic- 
tion, and  a  state  may  exercise  exclusive  control  over  such 
other  waterways  as  are  within  its  territory,  and  are  not 
used  in  the  transportation  of  foreign  or  interstate  com- 
merce. Thus  in  South  Carolina  v.  Georgia,4  the  facts 
were,  that  the  states  of  South  Carolina  and  Georgia  hav- 

1  107  U.S.  38.  *  Crandall  v.  Nevada,  6  Wall.  35. 

3  People  v.  Compagnie  Gdnerale  Transatlantique,  107  U.  S.  59. 
*  93  U.  S.  4. 


88  COMMERCE. 

ing  on  24  April,  1787,1  entered  into  a  compact  stipulat- 
ing, inter  alia,  that  the  boundary  line  between  the  two 
states  should  be  the  northern  branch  of  the  Savannah 
river,  and  that  the  navigation  of  the  river  along  a  speci- 
fied channel  should  be  forever  free  to  the  citizens  of  both 
states,  Congress  by  the  Act  of  23  June,  1874,2  appro- 
priated certain  sums  of  money  "  to  be  expended  under 
the  direction  of  the  Secretary  of  War,  ...  for  continu- 
ing the  improvement  of  the  harbour  at  Savannah,"  and 
that  officer,  for  the  purpose  of  securing  a  greater  depth 
of  water  in  that  harbour,  authorized  the  construction  of 
a  crib,  which  had  the  effect  of  diverting  the  water  from 
the  northern  branch  of  the  river,  referred  to  in  the  com- 
pact of  1787.  The  state  of  South  Carolina  then  filed 
its  bill  in  equity  in  the  Supreme  Court  of  the  United 
States  against  the  state  of  Georgia,  the  Secretary  of 
War,  Mr.  Taft,  and  his  subordinates,  General 
Humphries  and  Colonel  Gilmore,  praying  an  injunc- 
tion to  restrain  them  from  obstructing  the  navigation 
of  the  Savannah  river  in  violation  of  the  compact 
between  South  Carolina  and  Georgia.  At  the  hearing 
the  court  dismissed  the  bill,  holding  that  whatever 
might  have  been  the  rights  of  South  Carolina  and 
Georgia  under  the  compact  of  1787,  the  Constitution  of 
the  United  States  vested  in  Congress  the  power  of  regu- 
lating foreign  and  interstate  commerce,  and  thereby 
authorized  Congress  to  do  whatever  in  its  discretion,  or 
in  the  discretion  of  its  agents,  might  be  expedient  in  the 
improvement  of  the  navigation  of  the  harbours  and 
rivers  which  are  waterways  of  commerce,  foreign  and 
interstate,  even  to  the  extent  of  changing  the  established 
channels  of  such  rivers, 

1  The  Constitution  of  the  United  States  went  into  effect  on  the  first  Wed- 
nesday in  March,  1789.     Owings  v.  Speed,  5  Wheat.  420. 

2  18  Stat.  240, 


IMPROVEMENTS    OF    WATERWAYS.  89 

In  Wisconsin  v.  Dulutli,1  the  facts  were,  that  Congress 
having  directed,  and  appropriated  the  money  for,  the 
improvement  of  the  harbour  of  Duluth,  a  town  in  the 
state  of  Minnesota,  and  situated  upon  Lake  Superior, 
the  state  of  Wisconsin  apprehending,  as  the  result  of  the 
improvements  contemplated  and  in  progress  of  con- 
struction,a  diversion  of  trade  from  the  town  of  Superior 
City,  also  on  Lake  Superior,  but  in  the  state  of  Wiscon- 
sin, by  reason  of  alterations  in  the  channel  of  a  river 
flowing  into  the  lake,  filed  a  bill  in  equity  in  the 
Supreme  Court  of  the  United  States  to  enjoin  the  con- 
tinuance of  the  work  by  the  city  of  Duluth.  The 
answer  set  up  as  an  affirmative  defense,  that  the  work 
had  been  done  with  the  approval  and  under  the  control 
of  the  United  States,  and  with  money  appropriated 
therefor  by  Congress,  and  the  court  at  the  hearing,  on 
bill,  answer,  and  proofs,  sustained  the  defense  as  set  up 
in  the  answer  and  dismissed  the  bill.  Miller,  J.,  said,2 
"  while  this  court  has  maintained,  in  many  cases,  the 
right  of  the  states  to  authorize  structures  in  and  over 
the  navigable  waters  of  the  states,  which  may  either 
impede  or  improve  their  navigation,  in  the  absence  of 
any  action  of  the  general  government  in  the  same 
matter,  the  doctrine  has  been  laid  down  with  unvarying 
uniformity,  that  when  Congress  has,  by  any  expression 
of  its  will,  occupied  the  field,  that  action  was  conclusive 
of  any  right  to  the  contrary  asserted  under  state 

authority If  then,  Congress,  in  the 

exercise  of  a  lawful  authority,  has  adopted  and  is  carry- 
ing out  a  system  of  harbour  improvements  at  Duluth, 
this  court  can  have  no  lawful  authority  to  forbid  the 

work While   the  engineering   officers   of 

the  government  are,  under  the  authority  of  Congress, 
doing  all  they  can  to  make  this  canal  useful  to  com- 

1  96  U.  S.  379.  2  p.  387. 

\ 


90  COMMENCE. 

raerce,  and  to  keep  it  in  good  condition,  this  court  can 
owe  no  duty  to  a  state  which  requires  it  to  order  the 
city  of  Duluth  to  destroy  it." 

On  the  other  hand,  in  the  County  of  Mobile  v.  Kim- 
ball,1  the  facts  were,  that  a  statute  of  Alabama  having 
created  a  Board  of  Commissioners  for  the  improve- 
ment, deepening,  and  widening  of  the  harbour  of 
Mobile,  and  having  authorized  an  issue  of  bonds  to 
defray  the  cost  of  the  improvements,  and  certain  of  the 
bonds  having  been  stipulated  to  be  issued  to  Kimball, 
a  contractor  for  a  portion  of  the  work,  Kimball  filed 
a  bill  in  equity  to  compel  a  delivery  of  certain  bonds 
remaining  due  to  him,  and  the  defendants  set  up, 
among  other  defenses,  the  unconstitutionality  of  the 
statute  by  reason  of  its  infringement  upon  the  power 
of  Congress  over  commerce.  The  court,  however, 
affirmed  the  constitutionality  of  the  statute,  on  grounds 
which  can  be  best  stated  in  the  words  of  Field,  J.,2  who 
said,  uthe  uniformity  of  commercial  regulations,  which 
the  grant  to  Congress  was  designed  to  secure  against 
conflicting  state  provisions,  was  necessarily  intended 
only  for  cases  where  such  uniformity  is  practi- 
cable. Where  from  the  nature  of  the  subject  or  the 
sphere  of  its  operations  the  case  is  local  and  limited, 
special  regulations  adapted  to  the  immediate  locality 
could  only  have  been  contemplated.  State  action  upon 
such  subjects  can  constitute  no  interference  with  the 
commercial  power  of  Congress,  for  when  that  acts  the 
state  authority  is  superseded.  Inaction  of  Congress 
upon  these  subjects  of  a  local  nature  or  operation, 
unlike  its  inaction  upon  matters  affecting  all  the  states 
and  requiring  uniformity  of  regulation,  is  not  to  be 
taken  as  a  declaration  that  nothing  shall  be  done  with 
respect  to  them,  but  it  is  rather  to  be  deemed  a  declara- 

1  102  U.  S.  691.  2  p.  698. 


IMPROVEMENTS    OF    WATERWAYS.  91 

tion  that  for  the  time  being,  and  until  it  sees  fit  to  act, 
they  may  be  regulated  by  state  authority.  The  im- 
provement of  harbours,  bays,  and  navigable  rivers 
within  the  states  falls  within  this  last  category  of  cases. 
The  control  of  Congress  over  them  is  to  insure  freedom 
in  their  navigation  so  far  as  that  is  essential  to  the 
exercise  of  its  commercial  power.  Such  freedom  is  not 
encroached  upon  by  the  removal  of  obstructions  to 
their  navigability,  or  by  other  legitimate  improvements. 
The  states  have  as  full  control  over  their  purely 
internal  commerce  as  Congress  has  over  commerce 
among  the  several  states  and  with  foreign  nations;  and 
to  promote  the  growth  of  that  internal  commerce  and 
insure  its  safety  they  have  an  undoubted  right  to  re- 
move obstructions  from  their  harbours  and  rivers, 
deepen  their  channels,  and  improve  them  generally  if 
they  do  not  impair  their  free  navigation  as  permitted 
under  the  laws  of  the  United  States,  or  defeat  any 
system  for  the  improvement  of  their  navigation  pro- 
vided by  the  general  government."  The  case  of  Huse 
v.  Glover,1  follows  in  the  same  line.  The  facts  in  that 
case  were  that  the  state  of  Illinois,  having  by  statute 
authorized  the  improvement  of  the  navigation  of  the 
Illinois  river  in  that  state,  including  the  construction 
of  locks  and  dams,  and  the  imposition  of  tolls  propor- 
tioned to  the  tonnage  of  the  vessels  passing  through 
the  locks,  the  complainants,  as  owners  of  steamboats 
engaged  in  the  navigation  of  the  river,  filed  a  bill  in 
equity  in  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  Illinois  to  enjoin  the  Commis- 
sioners from  exacting  tolls  for  the  passage  of  the  com- 
plainants'steamboats,  and  from  interfering  with  their  free 
and  uninterrupted  navigation  of  the  river.  The  cause 
was  argued  in  the  court  below  on  demurrer  to  the  bill, 

1  119  u.  s.  543. 


92  COMMERCE. 

and  a  decree  entered  dismissing  it,  which  on  appeal  was 
affirmed  by  the  Supreme  Court,  on  the  ground  that  the 
state  could  rightfully  make  the  improvement,  in  the 
exercise  of  its  legislative  discretion,  "  although  in- 
creased inconvenience  and  expense  may  thereby  result 
to  the  business  of  individuals,"  and  charge  tolls  there- 
for, whose  exaction  is  "  compensation  for  the  use  of 
artificial  facilities  constructed,'7  and  not  "  an  impost  for 
the  navigation  of  the  stream,"  and  the  fixing  of  whose 
rate  in  proportion  to  the  tonnage  of  the  vessel  and  the 
amount  of  freight  carried  by  them  is  not  a  duty  on 
tonnage  within  the  meaning  of  the  constitutional  pro- 
hibition, because  it  is  not  "  a  charge  upon  a  vessel, 
according  to  its  tonnage,  as  an  instrument  of  commerce, 
for  entering  or  leaving  a  port  or  navigating  the  public 
waters  of  the  country."1  The  doctrine  of  Huse  v. 
Glover  was  reiterated  in  Sands  v.  Manistee  River  Im- 
provement Company,2  in  which  case  it  was  further 
held,  that  the  exaction  of  tolls  for  the  use  of  an  improved 
waterway  is  not  a  deprivation  of  property  without 
due  process  of  law,  within  the  meaning  of  the  XIV 
Amendment.  So  also  in  Withers  v.  Buckley,3  Withers 
being  the  owner  of  a  plantation  on  Old  river,  which 
was  within  the  state  of  Mississippi,  and  the  state  having 
by  statute  authorized  a  diversion  of  the  water  from  that 
river,  filed  a  bill  in  a  court  of  the  state  to  enjoin  the 
prosecution  of  the  work :  the  defendant  demurred  and 
at  the  hearing  a  decree  was  entered  dismissing  the 
plaintiff's  bill,  and  on  appeal  that  decree  was  affirmed. 
Veazie  v.  Moor4  involves  the  same  principle. 

43.  The  deduction  to  be  drawn  from  the  cases  as  to 
dams  and  bridges  is  that  the  ultimate  power  of  bridg- 
ing, or  otherwise  obstructing,  navigable  waters  is  vested 

1  See  the  Wharfage  Cases,  Sec.  45.        3  20  How.  84. 

2  123  U.  S.  288.  *  14  How.  568. 


BRIDGES.  93 

in  Congress,  and  as  navigable  waters  are  no  longer  the 
sole,  nor,  indeed,  the  main  channels  of  commerce,  and 
as  that  volume  of  trade  which  is  carried  over  such 
waters  by  bridges  or  viaducts  is  in  some  cases  entitled, 
by  reason  of  its  magnitude,  to  greater  consideration 
than  that  which  is  moved  in  boats  upon  the  water,  it 
must  be  determined  in  the  case  of  any  bridge,  whose 
erection  or  the  method  of  whose  construction  is  called 
into  question,  whether  or  not  the  public  interest  will  be 
promoted  by  its  construction  in  the  particular  manner, 
and  such  a  matter  is  primarily  one  for  the  decision  of 
the  legislature  rather  than  of  any  courts,  and  until 
Congress  has  exercised  its  paramount  power  in  the 
premises,  the  state  or  states  within  whose  jurisdiction 
navigable  waters  are  situated  may,  at  its  or  their  plea- 
sure, authorize  by  legislation  the  complete  obstruction 
of  those  waters  by  dams,  or  their  partial  obstruction  by 
bridges.  The  leading  case  is  Willson  v.  The  Black 
Bird  Creek  Marsh  Co.,1  in  which  the  facts  were,  that 
the  Black  Bird  Creek  being  a  navigable  stream  wholly 
within  the  state  of  Delaware,  and  that  state  having 
enacted  a  statute  authorizing  the  company  to  construct  a 
dam  across  the  creek,  and  the  dam  having  been  built,  and 
a  sloop,  enrolled  and  licensed  under  the  navigation  laws 
of  the  United  States,  and  owned  by  Willson,  having 
broken  and  injured  the  dam,  the  company  brought  an 
action  of  trespass  vi  et  armis  against  Willson  in  a  court 
of  the  state  of  Delaware,  and  he  raised,  by  plea,  the 
question  of  the  right  of  the  state  to  authorize  the  ob- 
struction of  a  navigable  stream.  A  .verdict  having 
been  found  for  the  plaintiff,  judgment  thereon  was 
affirmed  by  the  Supreme  Court,  the  ground  of  decision 
being,2  that,  while  Congress  could  authorize  or  prohibit 

1  2  Pet,  24r>. 

2  Marshall,  C.  J.,  p.  252,  said ;— "  if  Congress  had  passed  any  act  which 


94  COMMERCE. 

the  obstruction  of  a  navigable  river,  yet  if  that  body  did 
not  act,  the  state,  within  whose  territory  the  navigable 
river  in  question  was  situated,  was  free  in  its  discretion 
to  authorize  the  obstruction.  The  next  case  in  the 
order  of  time  is  Pennsylvania  v.  The  Wheeling  and 
Balrnont  Bridge  Co.1  The  facts  were  that,  when  the 
state  of  Kentucky  was  created  by  the  severance  of  its 
territory  from  that  of  Virginia,  the  two  states  entered 
into  a  compact  stipulating  that  the  navigation  of  the 
Oliio  " shall  be  free  and  common  to  the  citizens  of  the 
United  States,"  and  that  compact  received  the  sanction 
of  Congress.  Congress  thereafter  neither  licensed  nor 
prohibited  the  obstruction  of  the  navigation  of  the 
Ohio  by  a  bridge,  nor  made  any  statutory  regulations  of 
commerce  on  the  Ohio, other  than  such  as  were  applicable 
to  the  navigable  waters  of  the  United  States  in  general. 
The  state  of  Virginia  thereafter  by  statute  authorized  the 
construction  of  a  bridge  over  the  Ohio  river  from  Wheel- 
ing to  an  island  in  the  river  belonging  to  Virginia,  the 
manner  of  construction  designated  in  the  statute  neces- 
sarily interfering  with  the  navigation  of  the  river  by 
steamboats  plying  on  the  river  between  Pittsburg  in 
the  state  of  Pennsylvania  and  the  points  below  the 
bridge  on  the  Ohio  and  on  the  Mississippi.  At  that 
time  the  state  of  Pennsylvania  was  the  proprietor  of 
certain  lines  of  railway  and  canal,  connecting  Pittsburg 
with  the  eastern  portion  of  the  state.  While  the  bridge 

bore  upon  the  case ;  any  act  in  execution  of  the  power  to  regulate  commerce, 
the  object  of  which  was  to  control  state  legislation  over  those  small  navigable 
reeks  into  which  the  tide  flows,  and  which  abound  throughout  the  lower 
country  of  the  middle  and  southern  states;  we  should  feel  not  much  difficulty 
in  saying  that  a  state  law  coming  in  conflict  with  SUCK  act  would  be  void.  Hut 
Congress  has  passed  no  such  act.  The  repugnancy  of  the  law  of  Delaware  to 
the  Constitution  is  placed  entirely  on  its  repugnancy  to  the  power  to  regulate 
commerce  with  foreign  nations  and  among  the  several  states;  a  power  which 
has  not  been  so  exercised  as  to  affect  the  question." 
1  9  How.  G47,  11  id.  528,  13  id.  518,  18  id.  421. 


BRIDGES.  95 

was  in  progress  of  construction,  the  state  of  Pennsyl- 
vania filed  its  bill  in  equity  in  the  Supreme  Court  of 
the  United  States  against  the  bridge  company,  praying 
an  injunction  to  restrain  the  erection  of  the  bridge 
and  a  decree  for  its  abatement  as  a  nuisance.  Various 
interlocutory  proceedings  were  had,  and  the  court  held 
that  the  state  of  Pennsylvania  had,  by  virtue  of  its 
ownership  of"an  interest  in  its  lines  of  railway  and 
canal,  a  standing  in  court;  that  the  bridge  was  an 
obstruction  to  the  navigation  of  the  Ohio,  and,  as  such, 
a  violation  of  the  compact  between  Virginia  and  Ohio, 
and  that  it  must  be  abated  as  a  nuisance,  unless  so  modi- 
fied in  construction  as  not  to  obstruct  the  navigation. 
Further  proceedings  in  the  suit  were,  however,  pre- 
vented by  the  passage  of  an  act  of  Congress  declaring 
the  bridge  as  constructed  to  be  a  lawful  structure,  and 
the  constitutional  validity  of  this  act  having  been  sus- 
tained by  the  court,  it  necessarily  followed  that  nothing 
more  could  be  done  by  the  court  than  to  insist  that  so 
much  of  its  final  decree  as  awarded  costs  to  the  plain- 
tiff in  the  suit  should  be  carried  into  effect.  The  case, 
as  presented  to  the  court  for  a  decree  on  the  merits,  was 
simply  that  of  a  bridge  over  navigable  waters  which 
were  wholly  within  the  jurisdiction  of  the  state  of  Vir- 
ginia, the  erection  and  manner  of  construction  of  the 
bridge  having  been  sanctioned  by  the  state  of  Virginia, 
and  not  prohibited  by  the  United  States,  and  yet  on 
this  state  of  facts  the  court  held  that  the  bridge  was 
abatable  as  a  nuisance.  This  conclusion  is  certainly 
not  reconcilable  with  the  doctrine  of  either  Willson  v. 
Black  Bird  Creek  Marsh  Company,  or  with  that  of  the 
later  cases.1  Indeed,  the  only  possible  distinction  upon 
the  facts  to  be  drawn  between  the  Wheeling  Bridge 

1  See  the  dissenting  judgment  of  Clifford,  J.,  in  which  Wayne  and  Davis, 
JJ.,  concurred,  in  Oilman  v.  Philadelphia,  3  Wall.  732. 


96  COMMEKCE. 

Case  and  the  other  cases  on  the  subject  to  which  ref- 
erence has  been,  or  will  be,  made,  is  to  be  found  in  the 
facts  that  the  Ohio  river  constituted  a  waterway  of  in- 
terstate commerce  between  Pennsylvania  and  the  states 
between  which  the  Mississippi  flows,  and  that  by  com- 
pact between  Virginia  and  Kentucky  the  navigation  of 
the  Ohio  was  declared  "to  be  free  and  common  to  all 
the  states ;"  but  neither  of  these  distinguishing  facts 
could  afford  any  ground  for  denying  the  right  of 
Virginia  to  control  the  navigation  of  so  much  of 
the  river  as  is  within  its  jurisdiction  so  long  as 
Congress,  the  constituted  guardian  of  the  rights  of  the 
citizens  of  all  the  states,  deemed  it  unnecessary  to  inter- 
fere. The  next  case  is  M.  &  M.  K.  E.  v.  Ward,1  in 
which  Ward  filed  his  bill  in  the  District  Court  of  the 
United  States  for  the  District  of  Iowa,  as  the  owner  and 
the  navigator  of  steamboats  plying  on  the  Mississippi 
river  between  St.  Louis  in  the  state  of  Missouri  and  St. 
Paul  in  the  state  of  Minnesota,  praying  a  decree  for  the 
abatement  as  a  nuisance  of  a  bridge  over  the  Mississippi 
erected  by  the  railroad  company  between  Rock  Island 
in  the  state  of  Illinois  and  Davenport  in  the  state  of 
Iowa  under  the  authority  of  statutes  of  the  two  states. 
The  court  below  entered  a  decree,  directing  the  abate- 
ment of  so  much  of  the  bridge  as  was  within  the  limits 
of  the  state  of  Iowa,  and  on  appeal  by  the  railroad  com- 
pany, the  Supreme  Court  reversed  the  decree  and  dis- 
missed the  plaintiff's  bill.2  The  reasons  for  the  decree 
of  reversal,  as-stated  by  Catron,  J.,  were,  that  the  middle 
of  the  Mississippi  river  between  Illinois  and  Iowa  being 
the  boundary  dividing  the  one  state  from  the  other,  and 
the  territorial  jurisdiction  of  the  District  Court  of  the 

1  2  Bl.  485. 

2  Catron,  J.,  delivered  the  opinion  of  the  court,  and  Nelson,  Wayne,  and 
Clifford,  JJ.,  dissented. 


BRIDGES.  97 

United  States  for  the  District  of  Iowa  being  restricted 
to  the  limits  of  that  state,  and  a  bill  in  equity  to  enjoin 
a  nuisance  being  a  remedy  local  in  its  character  and 
operation,  the  court  below  had  no  jurisdiction  to  abate 
as  a  nuisance  so  much  of  the  bridge  as  was  within  the 
jurisdiction  of  Illinois,  and  that  on  the  proofs,  the  main 
channel  of  the  river  being  on  the  Illinois  side,  it  could 
not  be  held  that  the  bridge  by  its  obstruction  to  navi- 
gation on  the  Iowa  side  constituted  so  serious  a  nuisance 
as  to  justify  the  prostration  of  so  much  of  the  bridge  as 
was  on  the  Iowa  side.1 

The  next  cases  that  follow  in  the  order  of  time  are 
The  Albany  Bridge  Case2  and  The  Passaic  Bridge 
C;i32,3  and,  in  e.ioh  of  these  cases,  a  decree  of  a  Circuit 
Court  dismissing  a  bill  filed  to  enjoin  the  construction 
under  state  authority  of  a  bridge  over  a  navigable 
stream  within  the  jurisdiction  of  a  state  was  affirmed 
in  the  Supreme  Court  by  an  equally  divided  court,  and, 
therefore,  these  cases,  though  technically  authorities  in 
favour  of  the  right  of  the  state,4  have  not  that  moral 
weight  which  attaches  to  judgments  which  are  pro- 
nounced by  all,  or  a  majority  of,  the  members  of  the 
tribunal,  and  which  state  the  reasoning  which  has  led 
the  court  to  its  conclusions.  The  next  case  is  Oilman 
v.  Philadelphia,5  in  which  the  facts  were  that  Oilman, 
a  citizen  of  New  Hampshire,  and  the  owner  of  coal 
wharves  on  the  river  Schuylkill  in  the  state  of  Penn- 
sylvania, filed  his  bill  in  equity  in  the  Circuit  Court  of 
the  United  States  to  enjoin  the  construction  under  the 

1  Nelson,  Wayne,  and  Clifford,  JJ.,  dissented  on  the  ground   that  the  rule, 
as   established  by  the  Wheeling  Bridge  Case,  being  that  riparian  states  have 
no  power  to  obstruct  the  free  navigation  of  a  navigable  river,  it  must  in  everv 
case  be  found  as  a  fact  whether  or  not  the  bridge,  whose  abatement  is  sought 
as  a  nuisance,  does  so  obstruct,  and  if  that  finding  be  in  favour  of  the  plaintiff, 
a  decree  of  abatement  follows. 

2  2  Wall.  403.  *  Qneen  v.  Millis,  10  Cl.  &.  Fin.  534. 
8  3  Wall.  Appendix  782.  6  3  Wall.  713. 

7 


98  COMMERCE. 

authority  of  that  state,  of  a  bridge  over  the  Schuylkill 
river  which  would  obstruct  the  navigation  of  that  river 
and  prevent  the  approach  of  boats  to  his  wharves.  A  de- 
cree dismissing  the  plaintiff's  bill  was  affirmed,1  the 
court  holding  that  there  was  no  distinction  in  principle 
between  the  case  at  bar  and  the  case  of  Wilson  v.  The 
Blackbird  Creek  Marsh  Co.,2  and  that  the  rule  laid 
down  in  the  earlier  case  was  decisive  of  the  controversy. 
The  later  cases  of  Pound  v.  Turck,3  Escanaba  Co.  v. 
Chicago,4  Cardwell  v.  American  Bridge  Co.,5  Hamilton 
v.  V.  S.  &  P.  E.  R,6  and  Huse  v.  Glover,7  follow  in  the 
same  line  and  require  but  slight  comment.  It  is,  how- 
ever, to  be  noticed  that  the  court  held  in  Escanaba  Co. 
v.  Chicago,  and  in  Husev.  Glover,  and  also  in  Sands  ?;. 
M.  R.  &  I.  Co.,8  that  the  pre-constitutional  ordinance 
of  1787  for  the  government  of  the  northwestern  terri- 
tory, providing  for  the  free  navigation  of  the  waters 
leading  into  the  Mississippi  and  the  St.  Lawrence, 
"  without  any  tax,  impost,  or  duty  therefor,"  could  not 
limit  the  powers  of  the  states  under  the  Constitution, 
and  that  if  it  could,  the  privilege  of  free  navigation 
without  tax,  impost,  or  duty  was  not  impaired  by  the 
construction  of  bridges  over  these  waters.9  In  Cardwell 
v.  Bridge  Co.,  it  was  decided  that  the  act  of  Congress 
admitting  California  to  the  Union,  and  declaring,  in 
terms  almost  identical  with  those  of  the  ordinance  of 
1787,  that  the  navigable  waters  of  the  state  should  be 
forever  free,  did  not  affect  the  state's  rights  to  bridge 
those  navigable  waters,  and,  in  Hamilton  v.  V.  S.  &  P. 


1  Chase,  C.  J.,  and  Nelson,  Grier,  Swayne,  Miller,  and  Field,  JJ.,  concur- 
ring, and  Clifford,  Wayne,  and  Davis,  JJ.,  dissenting. 

2  2  Pet.  250.          3  95  U.  S.  459.        4  107  U.  8.  678.        5  113  U.  S.  205. 
6  119  U.  S.  280.    7  119  U.  S.  543.       8  123  U.S.  288. 

9  That  case  also  rules  that  a  state  may  delegate  to  a  municipal  corporation 
created  by  it  the  power  to  construct,  repair,  and  regulate  the  use  of  bridges 
under  state  authority. 


BRIDGES.  99 

R.  R.,  the  court  refused  to  give  any  greater  effect  to  a 
similar  declaration  with  regard  to  the  navigation  of  the 
Mississippi  and  its  tributaries  contained  'in  the  act  of 
Congress  admitting  the  state  of  Louisiana  to  the  Union. 
Nevertheless,  while  the  states  may  in  the  absence  of 
congressional  action  upon  the  subject,  in  their  discretion 
partially  obstruct  by  bridges,  or  wholly  obstruct  by 
dams,  navigable  waters  within  their  limits,  yet  the  ulti- 
mate power  over  the  matter  is  vested  in  Congress, 
Bridge  Co.  v.  United  States,1  and  Congress  may  forbid, 
or  permit  upon  conditions,  the  erection  of  a  bridge 
under  state  authority,2  or  it  may  legalize  a  bridge  al- 
ready erected,  pending  a  suit  to  enjoin  its  construction,3 
or  even  after  the  Supreme  Court  of  the  United  States 
has  entered  a  final  decree  declaring  the  bridge  as  con- 
structed to  be  an  unlawful  obstruction  to  navigation.4 
It  is  also  competent  for  Congress  to  declare  that  a 
bridge  over  navigable  waters,  if  constructed  in  a  speci- 
fied way,  shall  not  be  held  to  be  a  nuisance,  but 
shall  b3  deemed  to  be  a  lawful  structure,  and  to  dele- 
gate to  the  Secretary  of  War,  or  to  other  officers  of 
the  government,  the  duty  of  determining  whether  or 
not  the  required  method  of  construction  has  been 
adopted.5 

44.  The  result  of  the  cases  as  to  ferries  is,  that  inter- 
state ferries  are  primarily  subjects  of  state  regulation, 
and  that  a  state  may  tax  a  ferry  franchise  granted  by 
it,  and  that  it  may  tax  the  ferry-boats  owned  by  a 
person,  natural  or  corporate,  who,  by  reason  of  residence 

1  105  U.  S.  470.     For  a  reference  to  the  acts  of  Congress,  which  have  been 
passed  in  the  exercise  of  this  po*er,  see  the  judgment  of  Waite,  C.  J.,  105  U. 
8.  476. 

2  Bridge  Co  v.  U-ited  States,  105  U.  S.  470. 

3  The  Clinton  Bridge,  10  Wall.  454. 

4  Pennsylvania  v.  W.  &  B.  Bridge  Co.,  18  How.  421. 

5  Miller  w.  New  York,  109  U.  S.  385,  393. 


100  COMMERCE. 

within  the  territory,  is  subject  to  its  jurisdiction ;  but  a 
state  may  not  tax  ferry-boats  owned  by  a  person, 
natural  or  corporate,  who  is  not  by  residence  within  its 
territory  subject  to  its  jurisdiction,  and  which  only 
come  within  its  jurisdiction  in  the  prosecution  of  inter- 
state commerce.  In  Gibbons  v.  Ogden,1  Marshall,  C. 
J.,  enumerates  "  turnpike  roads,  ferries,"  etc.,  as  "  com- 
ponent parts"  of  "that  immense  mass  of  legislation, 
which  embraces  everything  within  the  territory  of  a 
state  not  surrendered  to  the  general  government/'  yet 
as  Field,  J.,  has  clearly  shown  in  Gloucester  Ferry  Co. 
v.  Pennsylvania,2  these  words,  fairly  taken,  do  not  mean 
that  a  state  can  so  regulate  ferries  plying  between  its 
ports  and  the  ports  of  another  state  as  to  obstruct  inter- 
state or  foreign  commerce,  but  they  mean  only  that,  as 
the  privilege  of  keeping  a  ferry  has  been  from  earliest 
times  "a  franchise  grantable  by  the  state,  to  be  exer- 
cised within  such  limits  and  under  such  regulations  as 
may  be  required  for  the  safety,  comfort,  and  con- 
venience of  the  public,"3  the  state  may  annex  condi- 
tions to  the  grant  of  the  franchise.  A  ferry  is  a  fran- 
chise entitling  him  to  whom  it  is  granted  to  exercise  at 
a  designated  point  on  the  bank  of  some  navigable  water 
the  privilege  of  embarking  and  landing  passengers  for 
and  from  some  other  point.  Thus  it  is  said  in 
Viner's  Abridgment,4  "  a  Ferry  is  in  Respect  of 
the  Landing  Place,  and  not  of  the  Water ;  the  Water 
may  be  to  one  and  the  Ferry  to  another;  as  'tis  of 
Ferries  on  the  Thames,  where  the  Ferry  in  some 
Place  belongs  to  the  Arch  Bishop  of  Canterbury, 
when  the  Mayor  of  London  has  the  interest  in  the 
Water ;  and  in  every  Ferry  the  Land  of  both  Sides  of 
the  Water  ought  to  be  to  the  Owner  of  the  Ferry,  or 

1  9  Wheat.  203.  3  per  Field,  J.,  114  U.  S.  196. 

2  114  U.  S.  196.  *  Vol.  XIII,  208,  tit.  Ferry. 


FERRIES.  101 

otherwise  lie  cannot  land  on  the  other  Part."  A  ferry 
is  therefore,  the  subject  of  grant  and  regulation  under 
state  authority.  Thus  in  Conway  v.  Taylor,1  the  state 
of  Kentucky  having  granted  to  the  appellees  an  exclu- 
sive ferry  at  the  town  of  Newport  in  that  state  situated 
on  the  Ohio  river,  and  the  appellees  having  under  that 
license  maintained  the  ferry  between  Newport  and  Cin- 
cinnati in  the  state  of  Ohio,  and  the  appellants  having 
undertaken,  by  means  of  a  steamboat  licensed  as  a 
coasting  vessel  of  the  United  States,  to  carry  passengers 
between  Cincinnati  and  Newport  and  to  land  them  at 
the  latter  port  in  derogation  of  the  exclusive  ferry  right 
vested  in  the  appellees,  and  having  been  at  the  suit  of 
the  appellees  enjoined  from  so  doing  by  the  decree  of 
the  court  below,  that  decree  was  affirmed,  on  the  ground 
that  the  ferry  franchise,  being  granted  in  respect  of  the 
landing,  was  a  matter  of  state  regulation,  that  so  far  as 
regards  rights  exercised  in  one  stale  under  such  a 
franchise,  though  as  a  means  to  the  end  of  transporta- 
tion, to  or  from  another  state,  the  concurrent  action  of 
the  two  states  was  not  necessary,  and  that  the  United 
States  coasting  license  granted  to  the  appellant's  boat, 
while  entitling  them  to  navigate  in  the  prosecution 
of  commerce,  did  not  empower  them  to  invade  the  ap- 
pellee's ferry  franchise,  nor  to  participate  in  the  exer- 
cise of  that  privilege,  for  "  the  vitality  of  such  a  franchise 
lies  in  its  exclusiveness,"  and  "  the  moment  the  right 
becomes  common,  the  franchise  ceases  to  exist."2  The 

1  1  Bl.  603. 

2  per  Swayne,  J.,  p.  634.     In  Fanning  v.  Gregoire,  16  How.  524,  where  the 
question  was  as  to  the  exclusive  character  of  a  ferry  franchise  under  the  terms 
of  a  certain  grant  and  the  decision  was  adverse  to  its  exclusiveness,  McLean, 
J.,  said,  p.  534,  "the  argument  that  the  free  navigation  of  the  Mississippi 
river,  guaranteed  by  the  ordinance  of  1787,  or  any  right  which  may  be  sup- 
posed to  arise  from  the  exercise  of  the  commercial  power  of  Congress,  does 
not  apply  in  this  case.     Neither  of  these  interferes  with  the  police  power 
of  the  states,  in  granting  ferry  licenses.     When  navigable  rivers,  within  the 


102  COMMERCE. 

right  of  a  riparian  state  to  grant  franchises  to  ferries 
engaged  in  the  transportation  of  passengers  to  and  from 
its  shore  to  that  of  another  state,  includes  both  the  right 
to  grant  such  ferries  on  condition,  that  is,  to  license 
them  on  payment  of  a  fee,  or  tax  them  for,  and  also, 
under  certain  limitations,  to  tax  the  boats  and  other 
property  used  in  the  business  of  the  ferry.  Thus,  in 
Wiggins  Ferry  Co.  v.  East  St.  Louis,1  the  facts  were, 
that  the  state  of  Illinois  having  by  a  statute  of  1819 
granted  to  Wiggins  the  franchise  of  establishing  and 

O  ~O  O 

running  a  ferry  upon  the  Mississippi,  and  having  by  a 
statute  of  1853  incorporated  the  Wiggins  Ferry  Com- 
pany with  power  to  hold,  use,  and  enjoy  the  franchise 
theretofore  granted  to  Wiggins  and  to  run  a  ferry  from 
East  St.  Louis  in  Illinois  to  St.  Louis  in  Missouri,  and 
the  company  having  in  the  exercise  of  its  franchise 
employed  boats  which  had  been  duly  licensed  as  coast- 
ing vessels  of  the  United  States,  and  the  city  of  East  St. 
Louis  having,  under  the  powers  conferred  upon  it  by 
its  charter,  imposed,  by  an  ordinance  of  1878,  a  license 
fee  of  $100  per  annum  for  each  boat  of  the  Wiggins 
Ferry  Company,  and,  on  the  company's  refusal  to  make 
payment  thereof,  having  brought  an  action  to  recover 
the  amount  of  the  annual  license  then  due,  judgment 
was  rendered  in  the  court  below  against  the  ferry  com- 
pany and  affirmed  in  the  Supreme  Court,  the  ground  of 
decision  being  that  the  tax,  being  imposed  not  on  the 
boats  but  on  their  owner,  and  being  assessed  at  a  fixed 
rate  and  not  graduated  in  proportion  to  the  carrying 
capacity  of  the  boats,  was  not  a  tonnage  tax,  and  being 
taxation  of  the  personal  property  of  the  owner,  who  was 
admittedly  resident  within  the  jurisdiction  of  the  state 

commercial  power  of  the  Union,  may  be  obstructed,  one  or  both  of  these 
powers  may  be  invoked." 
1  107  U.  S.  365. 


FERRIES.  103 

and,  therefore,  subject  to  taxation  by  it,  it  was  not  a 
regulation  of  commerce,  nor  an  infringement  upon  any 
rights  conferred  by  the  enrollment  and  licensing  of  the 
boats  under  the  statutes  of  the  United  States.  Trans- 
portation Co.  v.  Wheeling,1  lays  down  the  same  princi- 
ples. In  St.  Louis  v.  The  Wiggins  Ferry  Co.,2  the  sole 
question  was  whether  the  company  was  taxable  by  the 
city  of  St.  Louis  under  a  statute  permitting  that  city  to 
tax  "  all  property  within  the  city,"  the  facts  as  found  in 
the  case  being  that  the  company  was  incorporated  under 
the  laws  of  Illinois,  but  its  principal  office  was  in  St. 
Louis  in  the  state  of  Missouri,  while  the  boats  when  not 
in  actual  use  were  laid  up  on  the  Illinois  shore,  and 
when  in  use  were  permitted  by  the  ordinances  of  St. 
Louis  to  remain  not  longer  than  ten  minutes  at  a  time 
at  their  St.  Louis  landing.  On  these  facts  the  court 
held,  that  the  boats  "  did  not  so  abide  within  the  city  as 
to  become  incorporated  with  and  form  part  of  its  per- 
sonal property,"  and,  "  hence  they  were  beyond  the 
jurisdiction  of  the  authorities  by  which  the  taxes  were 
assessed,"  and  were  not  within  the  meaning  of  the 
statute  "  within  the  city."  In  Gloucester  Ferry  Co.  v. 
Pennsylvania,3  the  facts  were  that  the  company  having 
been  incorporated  by  a  statute  of  the  state  of  New 
Jersey,  maintained  a  ferry  on  the  Delaware  river  between 
Gloucester  in  that  state,  and  Philadelphia  in  the  state 
of  Pennsylvania,  owning  a  dock  at  Gloucester  and 
leasing  one  at  Philadelphia,  and  owning  or  leasing  the 
boats  which  it  used  in  the  operation  of  the  ferry,  those 
boats  being  registered  at  the  port  of  Camden  in  the 
state  of  New  Jersey,  and  when  not  in  use  being  laid  up 
on  the  New  Jersey  bank  of  the  Delaware,  and  when  in 
use  only  remaining  at  the  dock  on  the  Pennsylvania 
side  sufficiently  long  to  discharge  and  load  passengers 

1  99  U.  S.  273.  8  11  Wall.  423.  3  114  U.  S.  196. 


101  COMMERCE. 

and  freight.    The  state  of  Pennsylvania  having  assessed 
the  capital  stock  of  the  company  for  taxation  under  a 
statute  of  the  state  subjecting  to  taxation  the  capital 
stock  of  companies  incorporated   by  other   states  and 
"  doing  business  in  "  that  state,  and  the  Supreme  Court, 
of  the  state  having  held  the  company  liable  to  taxation 
under  that   statute,  the  Supreme   Court  of  the  United 
States  reversed   the  decree  of  the  state  court,  holding 
tliat  while  the  company  did  business  within  the  state  of 
Pennsylvania  within  the  meaning  of  the  statute  impos- 
ing the  tax,  yet,  the  business  being  interstate  commerce, 
inasmuch  as  it  was  the  interstate  transportation  of  pas- 
sengers and  freight,  and  the  capital  of  the  company 
being  invested  in  its  boats  and  in  that   business,  that 
capital  was  not  subject  to  taxation  by  the  state  of  Penn- 
sylvania,   for    the   reason    that    such  taxation   was  in 
practical  effect  the  imposition  of  a  burden  on,  and  an 
obstruction  to,  and,  therefore,  a  regulation  of,  interstate 
commerce,   and    as  such    void.     Field,    J.,  said,1  "  the 
company  has  no  domicile  in  Pennsylvania,  and  its  capi- 
tal stock  representing  its  property  is  held  outside  of 
its  limits.     It  is  solely,  therefore,  for  the  business  of  the 
company  in  landing  and  receiving  passengers  at  the 
wharf  in  Philadelphia  that  the  tax  is  laid,  and  that  busi- 
ness, as  already  said,  is  an  essential  part  of  the  trans- 
portation between  the  states  of  New  Jersey  and  Penn- 
sylvania, which  is  itself  interstate  commerce.     While  it 
is  conceded  that  the  property  in  a  state  belonging  to  a 
foreign  corporation  engaged  in  foreign  and  interstate 
commerce  may  be  taxed  equally  with  like  property  of 
a  domestic  corporation  engaged  in  that  business,  we  are 
clear  that  a  tax  or  other  burden  imposed  on  the  property 
of  either  corporation  because  it  is  used  to  carry  on  that 
commerce,  or   upon  the  transportation  of  persons  or 

1  p.  211, 


WHARFAGE.  105 

property,  or  for  the  navigation  of  the  public  waters  over 
wliich  the  transportation  is  made,  is  invalid  and  void  as 
an  interference  with,  and  an  obstruction  of,  the  power 
ot'  Congress  in  the  regulation  of  such  commerce."  The 
doctrine  of  this  case  is  further  supported  by  that  of  P. 
&  S.  S.  S.  Co.  v.  Pennsylvania.1 

45.  The  validity  of  charges  imposed  on  vessels  by 
reason  of  their  use  of  the  facilities  afforded  by  wharves 
and  piers  constructed  under  state  authority  on  the 
banks  of  navigable  waters  depends  upon  the  same 
principles  as  those  which  have  been  laid  down  in  the  cases 
of  improvements  to  navigation ;  and  the  result  of  the 
cases  is,  that  the  states  may  build  wharves  on  navigable 
rivers,  and  collect  reasonable  dues  for  the  use  thereof, 
provided  that  such  dues  are  not  so  charged  as  to  dis- 
criminate against  interstate  commerce.  It  has  already 
been  said,2  that  the  title  to  the  land  under  navigable 
waters  is  vested  in  the  riparian  state  subject  only  to  the 
paramount  power  of  the  United  States  over  navigation. 
While  the  title  of  the  individual  riparian  owner,  in 
general,  stops  at  high-water  mark,  the  state  has  the 
power  to  build  wharves  and  piers  on  the  bank  of  the 
stream  below  high-water  mark,3  and  it  may  charge  and 
collect  wharfage  dues  therefor.  Thus  in  Packet  Co.  v. 
Keokuk,4  the  facts  were  that  the  municipal  council  of 
the  city  of  Keokuk,  situated  on  the  Mississippi  river, 
having  under  legislative  authority  constructed  wharves 
on  the  river-front  of  the  city,  and  having  imposed  as 
wharfage  fees  the  sum  of  "  $1  if  the  tonnage  of  the 
boat  was  less  than  50  tons,"  and  larger  sums  for  heavier 
tonnage,  and  the  Packet  Co.,  as  owner  of  steamboats 
licensed  and  enrolled  under  the  act  of  Congress, 
and  plying  on  the  Mississippi  river  between  St.  Louis 

1  122  U.  S.  326.  »  Barney  v.  Keokuk,  94  U.  S.  324. 

2  Section  32.  *  95  U.S.  80- 


106  COMMERCE. 

and  St.  Paul,  and  in  the  course  of  their  voyages  land- 
ing at  the  city  wharves  at  Keokuk,  having  refused  to 
pay  the  wharfage  charges,  which  were  admittedly  rea- 
sonable in  amount,  the  city  brought  in  a  state  court  an 
action  at  law  against  the  Packet  Co.  to  recover  the 
amount  due  for  wharfage  charges,  and  judgment  was 
rendered  against  the  Packet  Co.  and  successively 
affirmed  in  the  state  court  of  last  resort  and  in  the 
Supreme  Court  of  the  United  States,  the  ground  of 
decision  being,  that  wharfage  dues  are  not  taxes,  that 
is,  "  impositions  by  virtue  of  sovereignty,"  but  they  are 
"a  charge  for  services  rendered,  or  for  conveniences 
provided,"  and  they  are  "claimed  in  right  of  proprie- 
torship."1 This  case  is  followed  and  supported  by 
Packet  Co.  v.  St.  Louis,2  Vicksburg  v.  Tobin,3  Packet 
Co.  v.  Catlettsburg,4  Transportation  Co.  v.  Parkersburg,5 
and  Ouachita  Packet  Co.  v.  Aiken.6  The  last  two  cases 
are  also  authorities  for  the  proposition,  that  wharfage 
dues,  like  the  charges  of  common  carriers,  must  be 
reasonable,  but  whether  they  be  in  fact  reasonable  is 
not  a  question  of  federal  law,  nor  as  such  cognizable 
in  a  court  of  the  United  States  in  cases  other  than 
those  in  which  the  federal  court  has  acquired  jurisdic- 
tion by  reason  of  the  citizenship  of  the  parties. 
Nevertheless,  clear  as  is  the  right  of  a  state  to  erect 
wharves  on  navigable  waters  and  collect  tolls  or  dues 
for  their  use,  that  right  cannot  be  so  exercised  as  to 
discriminate  in  favour  of  the  products  of  its  own  terri- 
tory and  against  interstate  commerce.  Thus,  in  Guy  v. 
Baltimore,7  the  facts  being,  that  the  city  of  Baltimore 
having,  under  legislative  authority,  constructed  public 
wharves,  and  imposed  wharfage  dues  upon,  inter  alia, 

1  per  Strong,  J.,  p.  84.      4  105  U.  S.  559.      6  121  U.  S.  444. 

2  100  U.  S.  423.          5  107  U.  S.  69.      7  100  U.  S.  434. 
8  100  U.  S.  430. 


PILOTAGE.  107 

potatoes  not  grown  in  the  state  of  Maryland,  and  Guy, 
a  resident  and  citizen  of  the  county  of  Accomac  in  the 
state  of  Virginia,  having  arrived  at  Baltimore  with  a 
schooner  laden  with  potatoes  grown  in  the  state  of 
Virginia,  and  having,  after  landing  his  cargo  at  the 
city  wharves,  declined  to  pay  the  wharfage  dues,  the 
city  of  Baltimore  brought  an  action  against  Guy  in  a 
state  court  to  recover  the  statutory  penalty  for  the  non- 
payment of  the  wharfage  dues,  judgment  was  rendered 
against  Guy,  but  reversed  in  the  Supreme  Court  of  the 
United  States,  on  the  ground  that,  under  the  circum- 
stances of  the  case,  the  wharfage  dues  were  exacted  not 
as  compensation  for  the  use  of  the  city's  property,  but 
"  as  a  mere  expedient  or  device  to  accomplish  by  indi- 
rection what  the  state  could  not  accomplish  by  a  direct 
tax,  namely,  build  up  its  domestic  commerce  by  means  of 
unequal  and  oppressive  burdens  upon  the  industry  and 
business  of  other  states."1 

46.  The  result  of  the  cases  as  to  pilotage  is,  that  that 
subject  being  one  primarily  of  local  concern,  the  states 
may  regulate  and  control  it  so  long  as,  and  to  the  extent 
that,  Congress  does  not  legislate  with  regard  to  it ;  but 
when  Congress  daes  legislate  on  the  subject  its  regula- 
tion thereof  will  be  of  paramount  authority.  As  the 
thirteen  original  states  were  existing  governments  when 
the  Constitution  was  ratified,  they  all,  with  the  excep- 
tion of  New  Hampshire,  had,  before  the  adoption  of  the 
Constitution,  enacted  laws  regulating  pilotage.  The 
act  of  Congress  of  7  August,  1789,  section  4,2  pro- 

1  per  Harlan,  J..  at  p.  443.  Waite,  C.  J,  dissented,  p.  444,  saying,  "  the 
ctate  of  Maryland  has  seen  fit  to  prohibit  the  City  of  Baltimore  from  making 
any  such  charge  for  landing  and  depositing  the  products  of  the  state.  That 
was  all  the  state  undertook  to  do.  I  am  unable  to  bring  my  mind  to  the  con- 
clusion that  the  Constitution  of  the  United  States  makes  this  the  equivalent 
of  a  provision  that  all  wharfage  at  the  public  wharves  belonging  to  the  city 
shall  be  free  so  long  as  the  law  as  it  now  stands  is  in  force." 

8  1  Stat.  54. 


108  COMMERCE. 

vided,  "  that  all  pilots  in  the  bays,  inlets,  rivers, 
harbours,  and  ports  of  the  United  States  shall  continue 
to  be  regulated  in  conformity  with  the  existing  laws  of 
the  states  respectively  wherein  such  pilots  may  be,  or 
with  such  laws  as  the  states  may  respectively  hereafter 
enact  for  the  purpose,  until  further  legislative  provision 
shall  be  made  by  Congress."  The  act  of  Congress  of  2 
March,  1837,1  declared  it  "  lawful  for  the  master  or 
commander  of  any  vessel  coming  in  or  going  out  of  any 
port,  situate  upon  the  waters  which  are  the  boundary 
between  two  states,  to  employ  any  pilot  duly  licensed 
or  authorized  by  the  laws  of  either  of  the  states."  In 
his  judgment  in  the  License  Cases,2  Taney,  C.  J.,  said 
that  this  act  was  "intended,  as  it  is  understood,  to  alter 
only  a  single  provision  of  the  New  York  law,  leaving 
the  residue  of  its  provisions  entirely  untouched."  The 
act  of  Congress  of  30  August,  1852,  section  9,3  pro- 
vided, inter  alia,  that "  instead  of  the  present  system  of 
pilotage "  of  vessels  propelled  in  whole  or  in  part  by 
steam,  certain  designated  inspectors  shall  license  and 
"  classify  all  "  "  pilots  of  steamers  carrying  passengers," 
and  declares  it  "  unlawful  for  any  person  to  employ,  or 
any  person  to  serve,  as  engineer  or  pilot  on  any  such 
vessel  who  is  not  licensed  by  the  inspectors."4  In  Gib- 
bons v.  Ogden,5  Marshall,  C.  J.,  said,  "it  has  been  said 
that  the  Act  of  7  August,  1789,  acknowledges  a  concur- 
rent power  in  the  states  to  regulate  the  conduct  of  pilots, 
and  hence  is  inferred  an  admission  of  their  concurrent 
right  with  Congress  to  regulate  commerce  with  foreign 
nations  and  among  the  states.  But  this  inference  is 
not,  we  think,  justified  by  the  fact.  Although  Congress 

1  5  Stat.  153.  2  5  How.  580.  8  10  Stat.  61. 

*  Sections  4235  et  seq.,  Eevised  Statutes  of  the  United  States,  re-enact  the 
Act  of  1789. 
6  9  Wheat.  207. 


PILOTAGE.  109 

cannot  enable  a  state  to  legislate,  Congress  may  adopt 
the  provisions  of  a  state  on  any  subject.  When  the 
government  of  the  Union  was  brought  into  existence,  it 
found  a  system  for  the  regulation  of  its  pilots  in 
full  force  in  every  state.  The  act,  which  has  been 
mentioned,  adopts  this  system,  and  gives  it  the  same 
validity  as  if  its  provisions  had  been  specially  made  by 
Congress.  But  the  act,  it  may  be  said,  is  prospective 
also,  and  the  adoption  of  the  laws  to  be  made  in  future 
presupposes  the  right  in  the  maker  to  legislate  on  the 
subject.  The  act  unquestionably  manifests  an  intention 
to  leave  this  subject  entirely  to  the  states,  until  Con- 
gress should  think  proper  to  interpose ;  but  the  very 
enactment  of  such  a  law  indicates  an  opinion  that  it 
was  necessary :  that  the  existing  system  would  not  be 
applicable  to  the  new  state  of  things,  unless  expressly 
applied  to  it  by  Congress.  But  this  section  is  confined 
to  the  pilots  within  the  "bays,  inlets,  rivers,  harbours 
and  ports  of  the  United  States,"  which  are,  of  course, 
in  whole  or  in  part,  also  within  the  limits  of  some  par- 
ticular state.  The  acknowledged  power  of  a  state  to 
regulate  its  police,  its  domestic  trade,  and  to  govern  its 
own  citizens  may  enable  it  to  legislate  on  this  subject 
to  a  considerable  extent ;  and  the  adoption  of  its  system 
by  Congress,  and  the  application  of  it  to  the  whole 
subject  of  commerce,  does  not  seem  to  the  court  to  im- 
ply a  right  in  the  states  so  to  apply  it  of  their  own 
authority.  But  the  adoption  of  the  state  system  being 
temporary,  being  only  "  until  further  legislative  pro- 
visions shall  be  made  by  Congress,"  shows  conclusively 
an  opinion  that  Congress  could  control  the  whole  sub- 
ject, and  might  adopt  the  system  of  the  states,  or  pro- 
vide one  of  its  own."  In  his  judgment  in  the  License 
Cases,1  Taney,  C.  J.,  referring  to  the  pilotage  laws, 

1  5  How.  580. 


110  COMMERCE. 

said,    "they   are   admitted    on    all    hands   to    belong 
to    foreign     commerce,    and     to     be    subject    to     the 

regulations  of  Congress Yet  they  have  been 

continually  regulated  by  the  maritime  states,  as  fully 
and  entirely  since  the  adoption  of  the  Constitution  as 
they  were  before  ;  and  there  is  but  one  law  of  Congress, 
making  any  specified  regulation  upon  tbe  subject,  and 
that  passed  as  late  as  1837,  and  intended,  as  it  is 
understood,  to  alter  only  a  single  provision  of  the  New 
York  law,  leaving  the  residue  of  its  provisions  entirely 
untouched.  It  is  true,  that  the  Act  of  1789  provides 
that  pilots  shall  continue  to  be  regulated  by  the  laws  of 
the  respective  states  then  in  force,  or  which  may  there- 
after be  passed,  until  Congress  shall  make  provisions  on 
the  subject.  And  undoubtedly  Congress  had  the  power, 
by  assenting  to  the  state  laws  then  in  force,  to  make 
them  its  own,  and  thus  make  the  previous  regulations 
of  the  states  the  regulations  of  the  general  government. 
But  it  is  equally  clear  that,  as  to  all  future  laws  by  the 
states,  if  the  Constitution  deprived  them  of  the  power 
of  making  any  regulations  on  the  subject,  an  act  of 
Congress  could  not  restore  it.  For  it  will  hardly  be 
contended  that  an  act  of  Congress  can  alter  the  Con- 
stitution, and  confer  upon  a  state  a  power  which  the 
Constitution  declares  it  shall  not  possess.  And  if  the 
grant  of  power  to  the  United  States  to  make  regulations 
of  commerce  is  a  prohibition  to  the  states  to  make  any 
regulation  upon  the  subject,  Congress  could  no  more 
restore  to  the  states  the  power  of  which  they  were  thus 
deprived,  than  it  could  authorize  them  to  coin  money 
or  make  paper  money  a  tender  in  the  payment  of  debts, 
or  to  do  any  other  act  forbidden  to  them  by  the  Con- 
stitution. Every  pilot  law  in  the  commercial  states  has, 
it  is  believed,  been  either  modified  or  passed  since  the 
Act  of  1789  adopted  those  then  in  force ;  and  the  pro- 


PILOTAGE.  Ill 

visions  since  made  are  all  void  if  the  restriction  on  the 
power  of  the  states  now  contended  for  should  be  main- 
tained ;  and  the  regulations  made,  the  duties  imposed, 
the  securities  required,  and  penalties  inflicted  by  these 
various  state  laws  are  mere  nullities,  and  could  not  be 
enforced  in  a  court  of  justice.  It  is  hardly  necessary 
to  speak  of  the  mischiefs  which  such  a  construction 
would  produce  to  those  who  are  engaged  in  shipping, 
navigation,  and  commerce.  Up  to  this  time  their 
validity  has  never  been  questioned.  On  the  contrary, 
they  have  been  repeatedly  recognized  and  upheld  by 
t!ie  decision  of  this  court."  Taney,  C.  J.,  in  thus  saying, 
did  not,  of  course,'  mean  that  the  Supreme  Court  had 
ever  up  to  that  time  judicially  passed  upon  the  validity 
of  state  pilotage  laws ;  he  meant  only  that,  in  his  opinion, 
the  constitutionality  of  such  laws  was  established  by 
the  principles  on  which  were  based  the  judgments  in 
the  cases  of  Willson  v.The  Blackbird  Creek  Marsh  Co.,1 
New  York  v.  Miln,2  Houston  v.  Moore,3  Sturges  v. 
Crowninshield,4  and  Chirac  v.  Chirac.5  In  Hobart  v. 
Drogan,6  where  the  question  at  issue  was  as  to  the 
right  of  a  pilot  to  claim  salvage,  it  was  argued,  "  that 
the  act  of  Congress,  so  far  as  it  adopts  the  future  laws 
to  be  passed  by  the  states  on  the  subject  of  pilotage  is 
unconstitutional  and  void,  for  Congress  cannot  delegate 
their  powers  of  legislation  to  the  states,"  but  the  court 
holding  the  case  to  be  one  of  salvage,  and  not  of  pilot- 
age, declined  to  express  any  opinion  as  to  the  power  of 
the  states  over  pilotage.  It  was  not  until  1851,  that,  in 
the  case  of  Cooley  v.  The  Board  of  Wardens,7  the  ques- 
tion came  before  the  court  for  judicial  determination. 
The  facts  of  the  case  were,  that  a  statute  of  Pennsyl- 
vania, enacted  on  2  March,  1803,  having,  with  regard 

1  2  Pet.  251.  »  5  Wheat.  1.  5  2  id.  269.         7  12  How.  299. 

2  11  id.  130.  4  4  id.  196.  6  10  Pet.  109. 


112  COMMERCE. 

to  the  port  of  Philadelphia  and  the  navigation  of  the 
river  Delaware,  imposed  the  duty  of  taking  a  pilot  on 
"  every  ship  or  vessel  arriving  from  or  bound  to  any 
foreign  port  or  place,  and  every  ship  or  vessel,  of  the 
burden  of  seventy-five  tons  or  more,  sailing  from  or 
bound  to  any  port  not  within  the  river  Delaware,"  and 
provided,  in  case  of  the  master's  refusal  or  neglect  to 
take  a  pilot,  that  half  pilotage  should  be  forfeited,  and 
recovered  as  pilotage,  and  the  masters  of  two  vessels, 
the  Undine  and  the  Consul,  having  refused  to  take  a 
pilot  under  the  statute,  two  actions  at  law  were  brought 
in  a  state  court  by  the  Board  of  Wardens  against 
Cooley,  the  consignee  of  both  vessels',  and  on  pleadings, 
which  raised  the  question  of  the  power  of  a  state  to 
regulate  pilotage  by  a  statute  enacted  after  the  adoption 
of  the  Constitution,  judgment  was  rendered  against 
Cooley  in  the  court  of  the  first  instance,  and  affirmed  in 
the  state  court  of  last  resort  and  in  the  Supreme  Court 
of  the  United  States,  on  the  grounds,  that  the  regulation 
of  pilotage  "  demanding  that  diversity  which  alone  can 
meet  the  local  necessities  of  navigation,"  and  the  Act  of 
1789  being  an  authoritative  declaration  "  that  the 
nature  of  this  subject  is  such  that  until  Congress  should 
find  it  necessary  to  exert  its  power,  it  should  be  left  to 
the  legislation  of  the  states,"  the  states  may,  by  legisla- 
tion after  as  well  as  before  the  adoption  of  the  Constitu- 
tion, continue  to  regulate  pilotage,  until  Congress,  in  its 
discretion,  shall  make  regulations  which  shall  govern 
pilotage  to  and  from  all  the  ports  of  the  country. 
Curtis,  J.,  said,  in  the  judgment  of  the  court,1  pilotage 
laws  "  rest  upon  the  propriety  of  securing  lives  and 
property  exposed  to  the  perils  of  a  dangerous  naviga- 
tion, by  taking  on  board  a  person  peculiarly  skilled  to 
encounter  or  avoid  them  ;  upon  the  policy  of  disccurag- 

1  p.  312. 


PILOTAGE.  113 

ing  the  commanders  of  vessels  from  refusing  to  receive 
such  persons  on  board  at  the  proper  times  and  places  ; 
and  upon  the  expediency,  and  even  intrinsic  justice,  of 
not  suffering  those  who  have  incurred  labour,  and  ex- 
pense, and  danger,  to  place  themselves  in  a  position  to 
render  important  services  generally  necessary,  to  go 
unrewarded,  because  the  master  of  a  particular  vessel 
either  rashly  refuses  their  proffered  assistance  or,  con- 
trary to  the  general  experience,  does  not  need  it.  There 
are  many  cases  in  which  an  offer  to  perform,  accom- 
panied by  present  ability  to  perform,  is  deemed  by  law 
equivalent  to  performance.  The  laws  of  commercial 
states  and  countries  have  made  an  offer  of  pilotage  ser- 
vice one  of  those  cases The  purpose  of  the  law 

being  to  cause  masters  of  such  vessels,  as  generally  need 
a  pilot,  to  employ  one,  and  to  secure  to  the  pilots  a 
fair  remuneration  for  cruising  in  search  of  vessels, 
or  waiting  for  employment  in  port,  there  is  an  obvious 
propriety  in  having  reference  to  the  number,  size,  and 
nature  of  employment  of  vessels  frequenting  the  port, 
and  it  will  be  found,  by  an  examination  of  the  different 
systems  of  their  regulations,  which  have  from  time  to 
time  been  made  in  this  and  other  countries,  that  the 
legislative  discretion  has  been  constantly  exercised  in 
making  discriminations,  founded  on  differences  both  in 
the  character  of  the  trade,  and  the  tonnage  of  vessels 
engaged  therein."1  ....  "If  the  law  of  Pennsylvania, 
now  in  question,  had  been  in  existence  at  the  date  of 
this  act  of  Congress,  1789,  we  might  hold  it  to  have 
been  adopted  by  Congress,  and  thus  made  a  law  of  the 
United  States,  and  so  valid.  Because  this  act  does,  in 
effect,  give  the  force  of  an  act  of  Congress  to  the  then 
existing  state  laws  on  this  subject,  so  long  as  they 
should  continue  unrepealed  by  the  state  which  enacted 

1  p.  317. 


114  COMMEKCE. 

them.  But  the  law  on  which  these  actions  are  founded 
was  not  enacted  until  1803.  What  effect  then  can  be 
attributed  to  so  much  of  the  Act  of  1789  as  declares, 
that  pilots  shall  continue  to  be  regulated  in  conformity 
'  with  such  laws  as  the  states  may  respectively  here- 
after enact  for  the  purpose,  until  further  legislative 
provisions  shall  be  made  by  Congress  ?  If  the  states 
were  divested  of  the  power  to  legislate  on  this  subject 
by  the  grant  of  the  commercial  power  to  Congress,  it  is 
plain  that  this  act  could  not  confer  upon  them  power 

thus  to  regulate The  grant  of  commercial  power 

to  Congress  does  not  contain  any  terms  which  expressly 
exclude  the  states  from  exercising  an  authority  over  its 
subject-matter.  If  they  are  excluded  it  must  be  be- 
cause the  nature  of  the  power,  thus  granted  to  Con- 
gress, requires  that  a  similar  authority  should  not 

exist  in  the  states Now  the  power  to  regulate 

commerce  embraces  a  vast  field,  containing  not  only 
many,  but  exceedingly  various  subjects,  quite  unlike  in 
their  nature ;  some  imperatively  demanding  a  single 
uniform  rule,  operating  equally  on  the  commerce  of  the 
United  States  in  every  port ;  and  some,  like  the  subject 
now  in  question,  as  imperatively  demanding  that  di- 
versity, which  alone  can  meet  the  local  necessities  of 

navigation The  Act  of  1789  contains  a  clear  and 

authoritative  declaration  by  the  first  Congress,  that  the 
nature  of  this  subject  is  such,  that  until  Congress  should 
find  it  necessary  to  exert  its  power,  it  should  be  left  to 
the  legislation  of  the  states  ;  that  it  is  local  and  not 
national ;  that  it  is  likely  to  be  best  provided  for,  not 
by  one  system  or  plan  of  regulations,  but  by  as  many 
as  the  legislative  discretion  of  the  several  states  should 
deem  applicable  to  the  local  peculiarities  of  the  ports 
within  their  limits It  is  the  opinion  of  the  ma- 
jority of  the  court  that  the  mere  grant  to  Congress  of 


PILOTAGE.  115 

the  power  to  regulate  commerce  did  not  deprive  the 
states  of  power  to  regulate  pilots,  and  that,  although 
Congress  has  legislated  on  this  subject,  its  legislation 
manifests  an  intention,  with  a  single  exception,  not  to 
regulate  this  subject,  but  to  leave  its  regulation  to  the 

several  states We  are  of  opinion  that  this  state 

law  was  enacted  by  virtue  of  a  power,  residing  in  the 
state  to  legislate:  that  it  is  not  in  conflict  with  any  law 
of  Congress  :  that  it  does  not  interfere  with  any  system 
which  Congress  has  established  by  making  regula- 
tions, or  by  intentionally  leaving  individuals  to  their 
own  unrestricted  action ;  that  this  law  is,  therefore, 
valid,  and  the  judgment  of  the  Supreme  Court  of 
Pennsylvania  in  each  case  must  be  affirmed."  The 
later  cases  follow  in  the  line  laid  down  by  Curtis,  J.2 
In  the  Steamship  Co.  v.  Joliffe,3  the  court  held  that  the 
act  of  Congress  of  30  August,  1852,4  does  not  establish 
pilotage  regulations  for  ports,  and  that  a  state  statute, 
imposing  half  pilotage  fees  upon  a  steam  vessel  neglect- 
ing or  refusing  to  take  a  pilot  when  coming  into  a  port 
of  the  state  is  not  in  conflict  with  that  act  of  Congress, 
but  Spraigue  v.  Thompson 5  decides  that  the  Revised 
Statutes  of  the  United  States6  prevent  a  state  from  dis- 
criminating in  its  pilotage  regulations  in  favour  of  some 
states,  and  against  others,  as  by  requiring  vessels  of 

1  McLean  and  Wayne,  JJ.,  dissented,  holding  that  the  states  could  not  by 
statutes  enacted  subsequently  to  the  adoption  of  the  Constitution,  regulate 
pilotage;  and  Daniel,  J.,  while  concurring  in  the  judgment  of  affirmance,  did 
not  agree  in  the  reasoning  of  the  majority  of  the  court,  as  stated  by  Curtis.  J., 
but,  on  the  contrary,  held  that  the  regulation  of  pilotage,  being  a  subject  local 
in  its  nature,  was  not  delegated  to  Congress  by  the  grant  of  the  power  to 
regulate  commerce,  but  remained  as  an  original  and  inherent  power  in  the 
states. 

2  Steamship  Co.  v    Joliffe    2  Wall.  450;  The  China,  7  id.  53;  Ex  parte 
McNeil,  13  id.  236;  Wilson  v.  McNamee,  102  U.  S.  572;  Spraigue  v.  Thomp- 
son, 118  td.90. 

3  2  Wall.  450.  5  118  U.  8.  90. 

«  10  Stat.  61.  «  Sections  4237,  4401  and  4444. 


116  COMMERCE. 

some  states  to  pay  half  pilotage  fees  and  exempting 
vessels  of  other  states  from  that  requirement,  and  that  a 
vessel  under  the  lawful  control  and  direction  of  a  pilot 
licensed  under  the  laws  of  the  United  States,  cannot  be 
required  to  take  a  pilot  under  the  laws  of  a  state,  nor  be 
subjected  to  a  penalty  for  the  failure  or  neglect  so  to  do. 
The  points  of  minor  importance  which  have  been 
adjudicated  in  the  pilotage  cases  are,  that  a  state  may 
impose  upon  a  vessel  neglecting  or  refusing  to  take  a 
pilot  the  forfeiture  of  half  pilotage  fees,  and  it  may 
exempt  from  such  forfeitures  the  vessels  engaged  in  a 
particular  trade.1  The  forfeiture  of  half  pilotage  fees 
being  not  in  the  nature  of  a  penalty,  but  of  compensa- 
tion tinder  an  implied  contract,2  those  fees  must  be  paid, 
though  the  pilot's  services  were  tendered  and  refused 
before  the  vessel  had  come  within  the  jurisdiction  of 
the  state,3  and  although  the  statute  authorizing  the 
recovery  shall  have  been  repealed  after  the  services  of 
the  pilot  were  tendered,  and  refused,  but  before  the 
action  was  brought  to  recover  therefor.4  Such  a  statute 

o 

may  impose  a  compulsory  obligation  on  foreign  vessels.5 
Pilotage  fees  being  matters  of  admiralty  jurisdiction,6 
the  Supreme  Court  of  the  United  States  will  not  by 
prohibition  restrain  the  admiralty  courts  from  hearing 
and  deciding  such  causes.7 

47.  The  doctrine  of  the  cases  as  to  state  quarantine 
and  sanitary  regulations  is,  that  a  state  may  prohibit 
the  entry  into  its  territory  of  infected  persons  or  goods, 
and  it  may  provide  for  an  examination  of  all  persons 

1  Cooley  v.  Board  of  Wardens,  12   How.  299 ;  Steamship  Co.  v.  Joliffe,  2 
Wall.  450 ;   Ex  pnrte  MacNeil,  13  id.  236  ;  Wilson  t.  McNamee,  102  U.  S.  572. 

2  Ex  parte  MacNeil,  13  Wall.  236. 

3  Wilson  v.  McNamee,  102  U.  S.  572. 

4  Steamship  Co.  v.  Joliffe,  2  Wall.  450. 
6  The  China,  7  Wall.  53. 

6  Hobart  v.  Drogan,  10  Pet.  108;  Ex  parte  MacNeil,  13  Wall.  236. 

7  Ex  parte  Hagar,  104  U.  S,  520;  Ex  parte  Pennsylvania,  109  id.  174. 


QUARANTINE.  117 

or  goods  coming  into  its  territory  in  order  to  deter- 
mine whether  or  not  they  be  infected,  and  in  order  to 
defray  the  expenses  of  such  sanitary  inspection  it 
may  collect  charges,  provided  that  such  charges  be 
not  in  form  duties  on  tonnage,  and  that  they  do 
not  unnecessarily  interfere  with  foreign  and  inter- 
state transportation.  Marshall,  C.  J.,  in  his  judg- 
ment in  Gibbons  v.  Ogden,1  enumerates  "quarantine 
laws"  and  "  health  laws  of  every  description"  as  "com- 
ponent parts  of  that  immense  mass  of  legislation,  which 
embraces  everything  within  the  territory  of  a  state,  not 
surrendered  to  the  general  government :  all  which  can 
be  most  advantageously  exercised  by  the  states  them- 
selves;" and  he  adds,2"  the  acts  of  Congress,  passed  in 
1796  and  1799,3  empowering  and  directing  the  officers 
of  the  general  government  to  conform  to,  and  assist  in 
the  execution  of  the  quarantine  and  health  laws  of  a 
state,  proceed,  it  is  said,  upon  the  idea  that  these  laws 
are  constitutional.  It  is,  undoubtedly,  true,  that  they  do 
proceed  upon  that  idea ;  and  the  constitutionality  of 
such  laws  has  never,  so  far  as  we  are  informed,  been 
denied.  But  they  do  not  imply  an  acknowledgment 
that  a  state  may  rightfully  regulate  commerce  with 
foreign  nations,  or  among  the  states;  for  they  do  not 
imply  that  such  laws  are  an  exercise  of  that  power,  or 
enacted  with  a  view  to  it.  On  the  contrary,  they  are 
treated  as  quarantine  and  health  laws,  are  so  denomi- 
nated in  the  acts  of  Congress,  and  are  considered  as 
flowing  from  the  acknowledged  power  of  a  state  to  pro- 
vide for  the  health  of  its  citizens.  But,  as  it  was 
apparent  that  some  of  the  provisions  made  for  this  pur- 
pose, and  in  virtue  of  this  power,  might  interfere  with, 
and  be  affected  by,  the  laws  of  the  United  States,  made 
for  the  regulation  of  commerce,  Congress,  in  that  spirit 
of  harmony  and  conciliation,  which  ought  always  to 

1  9  Wheat.  203.  *  p.  205.  »  2  Stat.  545 ;  3  id.  126. 


118  COMMERCE. 

characterize  the  conduct  of  governments  standing  in  the 
relation  which  that  of  the  Union  and  those  of  the  states 
bear  to  each  other,  has  directed  its  officers  to  aid  in  the 
execution  of  these  laws ;  and  has,  in  some  measure, 
adapted  its  own  legislation  to  this  object  by  making 
provisions  in  aid  of  those  states.  But,  in  making  these 
provisions,  the  opinion  is  unequivocally  manifested  that 
Congress  may  control  the  state  laws,  so  far  as  it  may  be 
necessary  to  control  them  for  the  regulation  of  com- 
merce." Title  LVIII,  of  the  Revised  Statutes  of  the 
United  States,  as  Miller,  J.,  says,  in  Morgan  v.  Louisi- 
ana,1 referring  to  state  quarantine  regulations,  shows 
"  very  clearly  the  intention  of  Congress  to  adopt  these 
laws,  or  to  recognize  the  power  of  the  states  to  pa-s 
them."  A  state  may,  therefore,  in  the  absence  of  con- 
flicting federal  legislation,  make  and  enforce  a  quarantine 
regulation  requiring  all  vessels  coming  into  a  port  of 
the  state,  to  stop  at  a  designated  quarantine  station, 
there  submit  to  a  sanitary  examination,  and  pay  there- 
for a  fee  rated  in  amount  in  proportion  to  the  marine 
class  to  which  the  vessel  may  belong,2 and  equal  in  amount 
for  all  vessels  of  the  same  class.  On  the  other  hand,  a 
state  cannot,  for  the  purpose  of  defraying  the  expenses 
of  enforcing  her  quarantine  regulations,  impose  on 
vessels  owned  in  ports  of  other  states,  and  entering  her 
harbours  in  the  pursuit  of  commerce,  a  tax  which  is 
based  on  the  tonnage  of  the  vessel,  as  ex  gr.  a  tax  at  the 
rate  of  $5  for  the  first  hundred  tons  and  II  cents  for 
each  additional  ton,3  for  such  a  tax  is  a  duty  on  ton- 
nage, and  as  such  prohibited.4  So  apprehensive  was 
Congress  that  its  legislation  in  17y9,5  directing  the 

1  118  U.  S.  465  *  Morgan  v.  Louisiana,  118  U.  S.  455. 

3  Peetev.  Morgan,  19  Wall.   581. 

4  In  Peete  v.  Morgan,  19  Wall.  583,  Davis,  J.,  said,  the  power  of  imposing 
tonnage  duties  cannot  be  exercised  without  the  permission  of  Congress,  and 
Congress  has  never  consented  that  the  states  should  lay  any  duty  on  tonnaga 

5  1  Stat.  619. 


QUARANTINE.  119 

collectors  of  customs  and  officers  commanding  forts  and 
revenue  cutters  to  aid  in  the  execution  of  the  quaran- 
tine and  health  laws  of  the  states,  rendered  necessary 
on  account  of  the  prevalence  of  yellow  fever  in  New 
York,  might  be  construed  into  an  admission  of  the  right 
of  the  states  to  lay  this  duty,  that  it  used  the  following 
words  of  exclusion,  "that  nothing  herein  shall  enable  any 
state  to  collect  a  duty  of  tonnage  or  impost  without  the 
consent  of  the  Congress  of  the  United  States  thereto."  l 
Nor  can  a  state,  under  the  form  of  sanitary  regulations, 
enact  statutes  which  are,  in  effect,  regulations  of  com- 
merce, either  foreign  or  interstate ;  thus,  in  R.  R.  v. 
Husen,2  the  facts  being  that  the  state  of  Missouri  hav- 
ing, by  a  statute,  prohibited  the  driving  or  conveyance 
of  Texan,  Mexican,  or  Indian  cattle  into  the  state 
between  the  first  day  of  March  and  the  first  day  of 
November  in  any  year,  and  having  permitted  the  trans- 
portation of  such  cattle  through  the  state  only  on  con- 
dition that  the  transporting  agent  "  shall  be  responsible 
for  all  damages  which  may  result  from  the  disease  called 
Spanish  or  Texan  fever,  should  the  same  occur  along 
the  line  of  transportation,  and  the  existence  of  such 
disease  along  such  route  shall  be  prima  facie  evidence 
that  such  disease  has  been  communicated  by  such  trans- 
portation," and  the  statute  having  further  provided  that 
a  liability  "for  all  damages  sustained  on  account  of  dis- 
ease communicated  by  said  cattle  "  should  follow  from 
a  violation  of  the  statute  ;  and  Husen,  having  brought 
suit  in  a  state  court  against  the  H.  &  St.  J.  R.  R.  to 
recover  damages  under  the  statute  and  having  obtained 
judgment,  the  Supreme  Court  reversed  the  judgment, 
holding  that  the  statute  was  void  as  an  attempted  regu- 
lation of  interstate  commerce,  inasmuch  as  it  prohibited 
the  introduction  into  the  state,  not  merely  of  diseased 

1  See  supra,  Tonnage  Duties,  Sec.  36.  *  95  U.  S.  465. 


120  COMMERCE. 

cattle,  but  of  all  Texan,  Mexican,  and  Indian  cattle 
during  eight  months  of  each  year,  and  it  imposed  a 
burden  on  the  transportation  of  cattle  through  the  state 
in  the  prosecution  of  interstate  commerce,  by  subjecting 
the  transporting  agent  to  liability  for  damages  caused 
by  the  communication  of  disease  from  such  cattle, 
though  there  might  not  be  any  negligence  on  the  part 
of  such  agent. 

48.  Port  dues,  that  is,  charges  imposed  on  vessels  as 
instruments  of  commerce,  and  payable  by  all  vessels 
entering,  remaining  in,  or  leaving  a  port,  by  reason  of 
such  entry,  stay,  or  departure,  and  without  regard  to 
services  rendered  to  or  received  by  the  vessel,  are  regu- 
lations of  commerce,  and  as  such  cannot  be  rightfully 
imposed  under  state  authority.1  Under  this  rule,  as 
expounded  in  Steamship  Co.  v.  Port  Wardens,2  a  charge 
of  $5  per  vessel  payable  to  the  wardens  "whether  called 
on  to  perform  any  service  or  not,  for  every  vessel  arriv- 
ing in  "the  port  of  New  Orleans,  was  held  to  be  a 
wrongful  imposition.  So  also,  under  pretence  of  mak- 
ing port  regulations,  a  state  cannot  rightfully  vest  in 
the  master  and  wardens  of  a  port,  or  in  his  deputies,  a 
monopoly  of  the  survey  of  the  hatches  of  sea-going 
vessels  coming  to  the  port,  or  of  damaged  goods,  on  such 
vessels,  for  such  a  monopoly  is  a  burden  upon,  and 
therefore  a  regulation  of,  foreign  and  interstate  com- 
merce.3 The  prohibition  of  state  duties  on  tonnage4 
forbids  the  imposition  by  a  state  of  port  dues  in  the 
form  of  a  tax  of  $5  for  the  first  hundred  tons  and  1£ 
cents  for  each  additional  ton  payable  by  vessels  owned 
in  another  state  and  entering  a  harbour  of  the  taxing 

1  Such  dues  are  also  open  to  objection  as  duties  on  tonnage.     Sec.  36. 
"  6  Wall.  31. 

3  Foster  v.  Master  and  Wardens  of  the  Port  of  New  Orleans,  94  U.  S.  246. 
*  Section  36. 


PORT   REGULATIONS.  121 

state  in  the  pursuit  of  commerce,1  and  also  of  a  tax 
similarly  proportioned  on  "  all  steamboats  which  shall 
moor  or  land  in  any  part  of  "  a  state  port.2 

49.  A  state  may  establish  port  regulations,  prescrib- 
ing where  a  vessel  may  lie  in  harbour,  how  long  she 
may  remain  there,  and  what  lights  she  must  show  at 
night;  thus  in  the  James  Gray  v.  The  John  Frazer,3 
an  admiralty  cause  of  damage  resulting  from  a  collision 
of  the  two  vessels  in  Charleston  harbour,  that  one  was 
held  to  be  in  fault,  which  had  by  its  failure  to  display 
lights  in  conformity  with  the  regulations  of  the  port 
imposed  under  authority  of  the  state,  been  the  cause 
of  the  collision.  Taney,  C.  J.,  said,4  "  regulations  of 
this  kind  are  necessary  and  indispensable  in  every 
commercial  port,  for  the  convenience  and  safety  of 
commerce,  and  the  local  authorities  have  a  right  to  pre- 
scribe at  what  wharf  a  vessel  may  lie,  and  how  long  she 
may  remain  there,  where  she  may  unload  or  take  on 
board  particular  cargoes,  where  she  may  anchor  in  the 
harbour,  and  for  what  time,  and  what  description  of 
light  she  shall  display  at  night  to  warn  the  passing 
vessels  of  her  position,  and  that  she  is  at  anchor  and 
not  under  sail.  They  are  like  to  the  local  usages  of 
navigation  in  different  ports,  and  every  vessel,  from 
whatever  part  of  the  world  she  may  come,  is  bound  to 
take  notice  of  them  and  conform  to  them.  And  there 
is  nothing  in  the  regulations  referred  to  in  the  port  of 
Charleston,  which  is  in  conflict  with  any  law  of  Con- 
gress regulating  commerce,  or  with  the  general  admi- 
ralty jurisdiction  conferred  on  the  courts  of  the  United 
States."  Ostensibly,  on  the  same  principle,  it  was  held 
in  New  York  v.  Miln,5  that  a  state  may  require  under 

1  Peete  v.  Morgan,  19  Wall.  581. 

2  Cannon  v.  New  Orleans,  20  Wall.  577. 

8  21  How.  184.  *  p.  187.  6  11  Pet.  102. 


122  COMMEECE. 

a  penalty  the  master  of  every  passenger-carrying  vessel 
on  arriving  at  any  port  within  the  state  to  report  to 
the  state  authorities  the  name,  place  of  birth,  last  legal 
settlement,  age,  and  occupation  of  every  passenger, 
the  statute  under  consideration  being  one  enacted  by 
New  York  in  1824,  and  the  court  affirming  its  validity 
on  the  ground  that  it  was  a  regulation,  not  of  commerce, 
but  of  police,  and  as  such  falling  within  the  reserved 
powers  of  the  state.  The  authority  of  the  case  is,  how- 
ever, much  shaken  by  the  admirably  reasoned  dissent- 
ing judgment  of  Story,  J.,  with  whose  conclusions  Mar- 
shall, C.  J.,  concurred,1  and  the  result  reached  by  the 
court  is  possibly  inconsistent  with  the  later  cases  of 
Sinnot  v.  Davenport,2  Foster  v.  Davenport,3  and  the 
yet  later  cases,  which  hold  that  a  state  cannot,  di- 
rectly or  indirectly,  tax  the  transportation  of  passen- 
gers coming  from  foreign  countries.4 

50.  Section  9  of  article  I  of  the  Constitution  declares 
that  "  no  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  state  over  those 
of  another."  This  prohibition  is,  obviously,  a  restraint 
upon  the  exercise  of  power  by  the  United  States  and 
not  by  the  states  ;  and  it  is  intended  to  guard  against 
partiality  and  favoritism  in  customs  regulations.  It 
has,  therefore,  been  held  that  the  diversion  of  water 
from  one  navigable  river  to  another,  as  the  result  of 
congressional  legislation  in  the  exercise  of  the  power  to 
regulate  commerce,  is  not  a  preference  to  the  ports  of 
one  state  over  those  of  another,5  and  that  the  legaliza- 
tion by  an  act  of  Congress  of  a  bridge  over  navigable 
waters,  though  indirectly  obstructing  the  commerce  of 

1  p.  161.  3  22  How.  224.    Supra,  sec.  33. 

2  22  How.  227.  4  Supra,  sec.  37. 
6  South  Carolina  v.  Georgia,  93  U.  S.  4. 


RAILWAY   TRANSPORTATION.  123 

a  port  in  another  state,  is  not  a  violation  of  the  consti- 
tutional prohibition.1 

51.  The  construction  of  railways,  and  the  develop- 
ment of  systems  of  through  transportation  have  required 
the  court  to  consider  in  several  cases  the  restrictive 
powers  of  the  government  of  the  United  States  and  of 
the  states  with  regard  to  the  interstate  transportation  of 
passengers  and  goods  by  railway.  In  1824,  Marshall, 
C.  J.,  incidentally  referring  in  Gibbons  v.  Ogden 2 
to  the  then  ordinary  appliances  of  interstate  transporta- 
tion, enumerated  "turn-pike  roads/'  etc.,  as  "component 
parts  "  of  "  that  immense  mass  of  legislation,  which 
embraces  everything  within  the  territory  of  a  state,  not 
surrendered  to  the  general  government."  In  the  same 
case,3  Johnson,  J.,  said,  "  as  to  laws  affecting  ferries, 
turnpike  roads,  and  other  subjects  of  the  same  class, 
so  far  from  meriting  the  epithet  of  commercial  regula- 
tions, they  are,  in  fact,  commercial  facilities,  for  which, 
by  the  consent  of  mankind,  a  compensation  is  paid, 
upon  the  same  principle,  that  the  whole  commercial 
world  submit  to  pay  light  money  to  the  Danes."  In 
Searight  v.  Stokes  ;4  Neil  v.  Ohio,5  and  Achison  v.  Hud- 
dleson,6  it  was  held  that  a  state,  through  which  the 
Cumberland  Road  passed,7  could  not  tax  the  coaches 
carrying  the  mail,  nor  the  persons  traveling  in  the 
coaches  thereon  on  the  service  of  the  United  States,  but 
the  exemption  from  taxation  was,  in  the  several  judg- 
ments of  the  court,  based  exclusively  upon  the  terms  of 
the  contracts  between  the  United  States,  and  the  states 
of  Pennsylvania,  Maryland,  and  Ohio,  as  made  by  the 

1  Penna.  v.  W.  &  B.  Bridge  Co.,  18  How.  421,  423. 

2  9  Wheat.  203.  5  3  How.  720. 

3  p.  235.  6  12  How.  293. 
*  3  How.  151. 

7  That  road  having  been  originally  constructed  by  the  government  of  the 
United  States  with  the  consent  of  the  states  through  which  it  passed. 


124  COMMERCE. 

statutes  of  those  states  authorizing  the  construction  of 
the  road  within  their  respective  territories.  The  result 
of  the  cases  which  have  directly  dealt  with  the  subject 
of  the  interstate  transportation  of  passengers  and  goods 
by  railways  is,  that,  while  a  state  may,  directly  or  indi- 
rectly, provide  facilities  of  transportation,  and  charge 
tolls  for  the  use  of  such  facilities,  and  while  a  state  may, 
in  the  exercise  of  the  police  power,  reasonably  regulate 
interstate  transportation  by  railways,  so  far  as  is  neces- 
sary for  the  protection  of  its  citizens,  provided  that  such 
police  regulations  do  not  unnecessarily  obstruct  the  com- 
merce thus  regulated,  and  while  a  state  may  make  the 
payment  of  a  license  fee  a  condition  precedent  to  the 
transaction  within  the  state  of  the  business  of  making 
contracts  for  interstate  transportation;  and  while  a  state 
may  tax  the  capital  stock  of  corporations  created  by  it, 
and  authorized  to  transport  passengers  and  freight  to 
and  from  the  state ;  a  state,  nevertheless,  cannot  obstruct 
or  embarrass  interstate  transportation  by  its  taxation  of 
passengers  per  capita,  or  of  freight  by  the  pound  moved, 
or  of  the  appliances  of  transportation  permitted  to  be  used 
by  a  foreign  corporation  within  the  state,  or  of  the  gross 
receipts  of  transportation  as  received  either  by  a  foreign 
corporation  or  a  corporation  created  by  the  state. 

52.  The  first  branch  of  the  proposition,  that  which 
affirms  the  right  of  the  state,  as  the  owner  of  an  artificial 
highway,  to  charge  tolls  for  the  use  of  that  highway,  is 
supported  by  the  case  of  B.  &  O.  K.  R.  v.  Maryland,1 
in  which  the  facts  were,  that  a  statute  of  the  state  of 
Maryland  having  authorized  the  B.  &  O.  K,.  R.  to  con- 
struct a  line  of  railway  between  Baltimore  in  that  state 
to  Washington  in  the  District  of  Columbia,  and  to 
transport  passengers  thereon  for  a  charge  not  exceeding 
$2.50  for  each  person  and  to  pay  semi-annually  to  the 

1  21  Wall.  456. 


RAILWAY    TRANSPORTATION.  125 

state  "one-fifth  of  the  whole  amount  which  may  be 
received  for  the  transportation  of  passengers  daring  the 
preceding  six  months,"  and  the  state  having  brought  in 
one  of  its  courts  an  action  against  the  company  to  re- 
cover the  amount  of  a  semi-annual  payment  which  the 
company  had  refused  to  make,  judgment  was  rendered 
in  favour  of  the  state,  and  affirmed  by  the  court,  on 
the  ground,  as  stated  in  the  judgment  of  Bradley,  J.,1 
that  the  payment  required  of  the  company  was  not  a 
tax  on  the  interstate  transportation  of  persons,  but  a 
charge  of  toll  for  the  use  of  improved  facilities  of 
travel  which  the  state  by  its  agent,  the  railroad  com- 
pany, had  constructed,  and  for  whose  use  it  had  a  right 
to  charge.  Miller,  J.,  dissented,2  on  the  ground,  that 
the  state  statute  "  was  intended  to  raise  a  revenue  for 
the  state  from  all  persons  coming  to  Washington  by 
rail/'  and,  therefore,  "  void  within  the  principle  laid 
down  by  the  court  in  Crandall  v.  Nevada,"3  If,  in 
connection  with  this  case,  the  case  of  the  State  Freight 
Tax4  be  considered,  the  distinction  will  be  clearly  ap- 
prehended between  a  toll  charged  in  virtue  of  ownership, 
and  a  tax  imposed  in  the  exercise  of  sovereignty. 

53.  As  to  the  second  branch  of  the  proposition,  that 
which  relates  to  the  exercise  by  the  states  of  the  power 
of  police  regulation  with  regard  to  interstate  commerce 
conducted  by  railways,  there  has  been  some  variance  of 
judicial  opinion;  but  the  deduction  to  be  drawn  from 
the  cases  is,  that  while  a  state  may,  in  the  exercise  of  its 
police  power,  reasonably  regulate  interstate  transportation 
by  railway,  so  far  as  may  be  necessary  for  the  protection 
of  the  safety,  health,  and  comfort  of  its  citizens,  it  may 
not  by  such  regulations  unnecessarily  embarrass  or 
obstruct  interstate  railway  transportation.  In  Railway 

1  p.  470  to  473.  3  6  Wall.  35,  infra,  sec.  54. 

2  p.  475.  *  15  Wall.  232,  infra,  sec.  54. 


126  COMMERCE* 

Company  v.  Fuller,1  the  facts  were,  that  the  state  of 
Iowa  having,  by  a  statute  of  1862,  required,  under  a 
penalty,  all  railroad  companies  to  fix  annually  their 
rates  of  fare  and  freight,  to  post  the  same  in  their 
stations  and  depots,  and  not  to  charge  in  excess  thereof, 
and  the  C.  &  N.  W.  R.  R.,  a  corporation  chartered 
by  the  state  of  Illinois,  and  operating  under  due 
authority  a  line  of  railway  through  Illinois,  Iowa,  and 
other  states,  having  duly  posted  its  rates  of  freight  at 
its  station  at  Marshallcown  in  Iowa,  having  transported 
certain  goods  for  Fuller  from  Chicago  in  Illinois  to 
Marshalltown,  and  having  charged  him  therefor  freight 
in  excess  of  its  posted  rate,  Fuller  brought  an  action 
against  the  company  to  recover  the  statutory  penalty, 
and  the  company  defended  on  the  ground  that  the 
state  statute  was  void  as  an  attempted  regulation  of 
interstate  commerce,  but  the  court  sustained  the  con- 
stitutionality of  the  statute  as  a  police  regulation. 
Swayne,  J.,  said,2  "  no  discrimination  is  made  between 
local  and  interstate  freights,  and  no  attempt  is  made  to 
control  the  rates  that  may  be  charged.  It  is  only 
required  that  the  rates  shall  be  fixed,  made  public, 
and  honestly  adhered  to.  In  this  there  is  nothing 
unreasonable  or  onerous.  The  public  welfare  is  pro- 
moted without  wrong  or  injury  to  the  company.  The 
statute  was  deemed  to  be  called  for  by  the  interests 
of  the  community  to  be  affected  by  it,  and  it  rests  upon 
a  solid  foundation  of  reason  and  justice."  The  court 
having  held  in  Munn  v.  Illinois,3  that  a  state  might 
regulate  the  rates  charged  by  a  private  warehouse  for 
the  storage  of  grain,  notwithstanding  the  fact  that 
grain  was  stored  therein  in  course  of  interstate  trans- 
portation, the  same  doctrine  was  in  C.,  B.  &  Q.  R.  R. 
v.  Iowa,4  applied  to  interstate  transportation  by  railway. 

1  17  Wall.  560.          2  p.  567.          3  94  U.  S.  113.         *  94  U.  S.  155. 


RAILWAY    TRANSPORTATION.  127 

The  facts  were  that  the  C.  B.  &  Q.  K.  R.  Co.,  a  corpor- 
ation created  by  the  laws  of  the  state  of  Illinois,  and  op- 
erating, as  lessee,  a  line  of  railway  constructed  by  the  B. 
&  M.  R.  R.  in  the  state  of  Iowa,  and  carrying  on  that 
line  goods  and  passengers  to  and  from  states  other  than 
Iowa,  filed  its  bill  in  equity  in  the  federal  court  of  the 
first  instance  to  enjoin  the  Attorney-General  of  Iowa 
from  proceeding  against  it  for  charges  made  in  violation 
of  a  statute  enacted  by  the  state  of  Iowa  in  1874,  which 
fixed  the  maximum  rates  of  fare  and  freight  for  all 
railways   within    the  state,   and   the   court  affirmed   a 
decree  dismissing  the  bill,  inter  alia,  on  the  ground,  as 
stated  by  Waite,  C.  J.,1  that  the  B.  &  M.  line,  like  the 
warehouse  in  Munn  v.  Illinois,  "is  situated  within  the 
limits  of  a  single  state.     Its  business  is  carried  on  there, 
and  its  regulation  is  a  matter  of  domestic  concern.     It 
is  employed  in  state  as  well  as  in  interstate  commerce, 
and,  until  Congress  acts,  the  state  must  be  permitted  to 
adopt  such  rules  and  regulations  as   may  be  necessary 
for  the  promotion  of  the  general  welfare  of  the  people 
within  its  own  jurisdiction,  even   though   in   so   doing 
those  without  may  be  indirectly  affected."2     The  view 
expressed  in  this  case  was  reiterated  in  Peik  v.  C.  &  N. 
W.  Ry.3     The  next  case  is  R.  R.  v.  Husen,4  in  which 
the  court  held  void  as  an  attempted  regulation  of  inter- 
state commerce  a  statute  of  the  state  of  Missouri,  pro- 
hibiting the  driving  of  Texan,  Mexican,  or  Indian  cat- 
tle into  the  state  between  the  first  day  of  March  and 
the  first  day  of  November  in  any  year,  and  permitting 
the  transportation  of  such  cattle  through  the  state  only 
on  condition  that   the  transporting   agent  "  shall    be 
responsible  for  all  damages  which  may  result  from  the 

i  p.  163.  3  Field  and  Strong,  JJ.,  dissented. 

3  94  U.  S.  164,  Field  and  Strong,  JJ.,  dissenting. 
*  95  U.  S  465. 


1 28  COMMERCE. 

disease  called  the  Spanish  or  Texan  fever,  should  the 
same  occur  along  the  line  of  transportation."  1  In  the 
first  of  the  Railroad  Commission  Cases,  Stone  v.  Far- 
mers' Loan  and  Trust  Co.,2  Stone  v.  I.  C.  R.  R.,3  and 
Stone  v.  N.  O.  &  N.  E.  R.  R.,4  wherein  the  question  was 
as  to  the  validity  of  a  statute  of  Mississippi,  forbidding 
discriminations  in  railway  transportation,  and  constitut- 
ing a  commission  with  power  to  revise  the  tariff  of  rail- 
way charges  and  to  enforce  the  statute,  Waite,  C.  J.,  said,5 
"the  statute  makes  no  mention  of  persons  or  property 
taken  up  without  the  state,  and  delivered  within,  nor 
of  such  as  may  be  taken  up  within  and  carried  without. 
As  to  this,  the  only  limit  on  the  power  of  commissioners 
is  the  constitutional  authority  of  the  state  over  the  sub- 
ject. Precisely  all  that  may  be  done,  or  all  that  may  not 
be  done,  it  is  not  easy  to  say  in  advance.  The  line  between 
the  exclusive  power  of  Congress,  and  the  general  powers 
of  the  state  in  this  particular,  is  not  everywhere  dis- 
tinctly marked,  and  it  is  always  easier  to  determine 
when  a  case  arises  whether  it  falls  on  one  side  or  on  the 
other,  than  to  settle  in  advance  the  boundary,  so  that  it 
may  be,  in  all  respects,  strictly  accurate.  As  yet  the 
commissioners  have  done  nothing.  There  is,  certainly, 
much  they  may  do  in  regulating  charges  within  the 
state,  which  will  not  be  in  conflict  with  the  Constitution 
of  the  United  States.  It  is  to  be  presumed  they  will 
always  act  within  the  limits  of  their  constitutional 
authority.  It  will  be  time  enough  to  consider  what  may 
be  done  to  prevent  it  when  they  attempt  to  go  beyond." 
In  W.  St.  L.  &  P.  Ry.  v.  Illinois,6  the  facts  were,  that 
a  statute  of  Illinois  having  enacted  that  "  if  any  rail- 
road corporation  shall  charge,  collect,  or  receive  for  the 

1  Supra,  sec.  47.  4  116  U.  S.  352. 

2  116  U.  S.  307.  5  p.  335. 

3  116  U.  S.  347.  6  118  U.  S.  557. 


RAILWAY    TRANSPORTATION.  129 

transportation  of  any  passenger  or  freight  of  any 
description  upon  its  railroad,  for  any  distance  within  the 
state,  the  same  or  a  greater  amount  of  toll  or  compensa- 
tion than  is  at  the  same  time  charged,  collected,  and 
received  for  the  transportation  in  the  same  direction  of 
any  passenger  or  like  quantity  of  freight  of  the  same 
class  over  a  greater  distance  of  the  same  road,  all  such 
discriminating  rates,  charges,  collections,  or  receipts, 
whether  made  directly,  or  by  means  of  rebate,  draw- 
back, or  other  shift  or  evasion,  shall  be  deemed  and 
taken  against  any  such  railroad  corporation  as  prima 
facie  evidence  of  unjust  discrimination, "  and  the  W. 
St.  L.  <fc  P.  Ry.  having  charged  Elder  &  McKinney  at 
the  rate  of  15  cents  per  100  pounds  for  the  transporta- 
tion of  certain  goods  from  Peoria  in  the  state  of  Illinois 
to  New  York  in  the  state  of  New  York,  and  having  on 
the  same  day  charged  Bailey  at  the  rate  of  25  cents  per 
100  pounds  for  the  transportation  of  like  goods  from 
Oilman  in  the  state  of  Illinois  to  the  city  of  New  York, 
the  distance  between  Gilman  and  New  York  being  less 
by  86  miles  than  that  between  Peoria  and  New  York, 
an  action  at  law  was  brought  in  the  name  of  the 
state  of  Illinois  against  the  railway  company  to  recover 
the  amount  of  a  statutory  penalty  in  a  court  of  the  state, 
and  a  judgment  rendered  therein  in.  favour  of  the  state 
was  reversed  by  the  court,  on  the  grounds,  as  stated  by 
Miller,  J.,  that  "  the  right  of  continuous  transportation 
from  one  end  of  the  country  to  the  other  is  essential  in 
modern  times  to  that  freedom  of  commerce  from  the 
restraints  which  the  state  might  choose  to  impose  upon 
it,"  and  that,  the  power  of  regulating  interstate  com- 
merce vested  by  the  Constitution  in  Congress  would 
fail  of  its  intended  object,  "  if,  at  every  stage  of  the 
transportation  of  goods  and  chattels  through  the 
country,  the  state,  within  whose  limits  a  part  of  this 
9 


130  COMMERCE. 

transportation  must  be  done,  could  impose  regulations 
concerning  the  price,  compensation,  or  taxation,  or  any 
other  restrictive  regulation  interfering  with  and  seriously 
embarrassing  this  commerce/'1  and  that  "a  statute  of  a 
state,  which  attempts  to  regulate  the  charges  by  rail- 
road companies  within  its  limits,  for  a  transportation 
which  constitutes  a  part  of  commerce  among  the  states," 
cannot  be  a  "  valid  law,'"2  because  "  this  species  of  regu- 
lation is  one  which  must  be,  if  established  at  all,  of  a 
general  and  national  character,  and  cannot  be  safely  and 
wisely  remitted  to  local  rules  and  local  regulations."  In 
the  judgment  in  this  case,  Miller,  J.,  disposed  of  the 
case  of  Munn  v.  Illinois  and  the  Granger  Cases  by  say- 
ing,3 that, "  although  as  incidental  to  the  question  of  an 
impairment  of  the  obligation  of  a  contract  alleged  to 
subsist  between  the  state  and  the  railway,  the  question 
of  the  exclusive  right  of  Congress  to  make  such  regula- 
tions of  charges  as  any  legislative  power  had  the  right 
to  make,  to  the  exclusion  of  the  states,  was  presented, 
it  received  but  little  attention  at  the  hands  of  the  court," 
and  he  added,4  that  "  it  is  not,  and  never  has  been,  the 
deliberate  opinion  of  a  majority  of  this  court  that  a 
statute  of  a  state,  which  attempts  to  regulate  the  fares 
and  charges  by  railroad  companies  within  its  limits  for 
a  transportation,  which  constitutes  a  part  of  commerce 
among  the  states,  .is  a  valid  law."  Waite,  C.  J.,  and 
Bradley  and  Gray,  JJ.,  dissented,  on  the  grounds,  as 
stated  by  Bradley,  J.,5  thac  "  all  local  arrangements 
and  regulations  respecting  highways,  turnpikes,  rail- 
roads, bridges,  canals,  ferries,  dams,  and  wharves,  within 
the  state,  their  construction  and  repair,  and  the  charges 
to  be  made  for  their  use,  though  materially  affecting 

1  p.  573.  4  p.  575. 

2  p.  575.  5  p.  581. 

3  p.  569. 


RAILWAY    TRANSPORTATION.  131 

commerce,  both  internal  and  external,  and  thereby 
incidentally  operating  to  a  certain  extent  as  regulations 
of  interstate  commerce,  were  within  the  power  and  juris- 
diction of  the  several  states,"  and  that  Peik  v.  C.  &  N. 
W.  Ry.,  was  a  conclusive  authority  in  support  of  the 
judgment  of  the  court  below. 

54.  In  considering  the  limits  within  which  a  state 
may  tax  the  interstate  transportation  of  passengers  and 
goods  by  railway,  those  cases  will  first  be  cited  in  which 
state  taxation  has  been  sustained.  In  the  State  Tax  on 
R  ul way  Gross  Receipts,1  the  question  was  as  to  the 
validity  of  a  statute  of  Pennsylvania,  imposing  on  all 
transportation  companies  a  "tax  of  three-fourths  of  one 
per  centum  upon  the  gross  receipts  of  said  company," 
payable  semi-annual ly,  so  far  as  such  gross  receipts 
were  derived  from  interstate  transportation  of  goods, 
and  the  majority  of  the  court  in  a  judgment,  read  by 
Strong,  J.,  sustained  the  tax  in  question  because  by  its 
being  "laid  upon  a  fund  which  has  become  the  property 
of  the  company,  mingled  with  its  other  property,  and 
possibly  expended  in  improvements,  or  put  out  at  in- 
terest," it  was  not  taxation  of  the  goods  carried,  nor  the 
freight  received  therefor,  nor  in  any  sense  a  regulation 
of  interstate  commerce.  Miller,  Field,  and  Hunt,  JJ., 
dissented,  on  the  ground  that,  while  railways  may  be 
taxed2  "on  their  capital  stock,  on  their  property,  real 
and  personal,  and  in  any  other  way,  that  does  not  im- 
pose a  burden  on  transportation  between  one  state  and 
another,"  yet  their  business,  so  far  as  regards  the  trans- 
portation of  persons  and  property  to  and  from  other 
states,  being  in  itself  commerce,  is  by  the  Constitution 
exempted  from  taxation,  or  other  regulation  under  state 
authority.  Miller,  J.,  added,3  "I  lay  down  the  broad 
proposition  that  by  no  device  or  evasion,  by  no  form  of 

1  15  Wall.  284.  2  p.  299.  3  p.  299. 


132  COMMEECE. 

statutory  words,  can  a  state  compel  citizens  of  other 
states  to  pay  to  it  a  tax,  contribution,  or  toll,  for  the 
privilege  of  having  their  goods  transported  through 
that  state  by  the  ordinary  channels  of  commerce.  And 
that  this  was  the  purpose  of  the  framers  of  the  Consti- 
tution I  have  no  doubt;  and  I  have  just  as  little  doubt 
that  the  full  recognition  of  this  principle  is  essential  to 
the  harmonious  future  of  this  country  now,  as  it  was 
then.  The  internal  commerce  of  that  day  was  of  small 
importance,  and  the  foreign  was  considered  as  of  great 
consequence.  But  both  were  placed  beyond  the  power 
of  the  states  to  control.  The  interstate  commerce  to- 
day far  exceeds  in  value  that  which  is  foreign,  and  it  is 
of  immense  importance  that  it  should  not  be  shackled 
by  restrictions  imposed  by  any  state  in  order  to  place 
on  others  the  burden  of  supporting  its  own  government, 
as  was  done  in  the  days  of  the  helpless  confederation.  I 
think  the  tax  on  gross  receipts  is  a  violation  of  the 
federal  Constitution,  and,  therefore,  void."  It  must  be 
observed  that  the  authority  of  this  case  was  shaken  by 
Fargo  v.  Michigan,1  and  that  it  has  been  overruled  by 
the  case  of  the  P.  &  S.  S.  S.  Co.  v.  Pennsylvania.2 

The  next  case  is  Osborne  v.  Mobile,3  in  which  the 
facts  were,  that  an  ordinance  of  the  city  of  Mobile,  in 
the  state  of  Alabama,  requiring  under  a  penalty  every 
express  or  railway  company  doing  in  that  city  a  busi- 
ness extending  beyond  the  limits  of  the  state  to  pay  an 
annual  license  fee  of  $500,  and  requiring  such  com- 
panies doing  business  not  extending  beyond  the  state 
or  the  city  to  pay  lesser  license  fees,  and  Osborne,  an 
agent  resident  in  Mobile  of  the  Southern  Express  Com- 
pany, a  corporation  chartered  by  the  state  of  Georgia, 
but  doing  in  Mobile  business  within  the  terms  of  the 
ordinance  by  making  contracts  and  receiving  goods  for 

1  121  U.  S.  230.  *  122  U.  S.  326.  3  16  Wall  479. 


RAILWAY    TRANSPORTATION.  133 

transportation  from  Mobile  to  points  without  the  state 
of  Alabama,  having  been  fined  for  transacting  business 
for  his  company  in  violation  of  the  ordinance,  the  court 
sustained  the  validity  of  the  ordinance  in  a  judgment, 
read  by  Chase,  C.  J.,  on  the  ground  that  the  license  fee 
in  question  was  not  a  burden  on  interstate  commerce, 
but  was  an  exercise  by  the  state  of  its  general  authority 
to  tax  persons,  property,  business,  or  occupations  within 
its  limits.  In  the  Delaware  R.  R.  Tax  Case,1  the  facts 
were,  that  the  P.,  W.  &  B.  R.  R.  having  been  duly 
formed  by  the  consolidation  of  companies  severally  in- 
corporated by  the  states  of  Pennsylvania,  Delaware, 
and  Maryland,  and  having  constructed  and  operated  a 
line  of  railroad  running  through  the  state  of  Delaware, 
and  a  statute  of  that  state,  having  required  each  of  its 
railroads  to  pay  an  annual  "  tax  of  one-fourth  of  one 
per  cent,  of  the  actual  cash  value  of  every  share  of  its 
capital  stock,"  the  P.,  W.  &  B.  R.  R  resisted  payment 
of  the  tax  on  several  grounds,  and,  inter  alia,  on  the 
ground  that  the  tax  imposed  a  burden  on  interstate 
commerce,  but  the  court  held,  in  a  judgment,  read  by 
Field,  J.,  that2  while  the  tax  indirectly  affected  com- 
merce in  "just  the  same  way  and  in  no  other,  that  tax- 
ation of  any  kind  necessarily  increases  the  expenses 
attendant  upon  the  use  or  possession  of  the  thing 
taxed,"  yet  that  "  the  exercise  of  the  authority  which 
every  state  possesses  to  tax  its  corporations  and  all 
their  property,  real  and  personal,  and  their  franchises, 
and  to  graduate  the  tax  upon  the  corporations  according 
to  their  business  or  income,  or  the  value  of  their  prop- 
erty, when  this  is  not  done  by  discriminating  against 
rights  held  in  other  states,  and  the  tax  is  not  on 
imports,  exports,  or  tonnage,  or  on  transportation  to 
other  states,  cannot  be  regarded  as  conflicting  with  any 

1  Minot  v.  P.,  W.  &  B.  R.  R.  et  al,  18  Wall.  206.  2  p.  232. 


134  COMMERCE. 

constitutional  power  of  Congress."  The  cases  in 
which  taxation  of  transportation  has  been  held  to 
be  invalid  will  now  be  cited.  The  first  case  is 
Crandall  v.  Nevada,1  in  which  the  question  was  as  to 
the  validity  of  a  statute  of  Nevada,  imposing  "a  capita- 
tion tax  of  one  dollar  upon  every  person  leaving  the 
state  by  any  railroad,  stage,  coach,  or  other  vessel 
engaged  or  employed  in  the  business  of  transporting 
passengers  for  hire,"  the  court  unanimously  held  the 
statute  to  be  void,  the  majority  of  the  judges,  in  a 
judgment  read  by  Miller,  J.,  intimating,  as  was  subse- 
quently decided  in  Woodruff  v.  Parham,2  that  the  con- 
stitutional prohibition  of  state  taxation  of  imports  or 
exports  has  exclusive  reference  to  foreign  commerce, 
and  also  expressing  the  opinion,  which  has  been  over- 
ruled in  all  the  subsequent  cases,  that  "  as  the  tax  does 
not  itself  institute  any  regulation  of  commerce  of  a 
national  character  or  which  has  an  uniform  operation 
over  the  whole  country,  it  is  not  easy  to  maintain,  in  view 
of  the  principles  on  which  those  cases3  were  decided, 
that  it  violates  the  commerce  clause  of  the  Consti- 
tution," but  resting  the  conclusions  as  to  the  invalidity 
of  the  statute  on  the  ground,  that  a  state  tax  on  the 
interstate  transportation  of  passengers  was  void  as  an 
interference  with  the  freedom  of  transit  of  citizens  to 
the  seat  of  government  of  the  United  States,  and  to  the 
federal  offices  and  the  ports  of  entry  in  the  several 
states,  and  as  a  consequent  infringement  upon  the 
federal  supremacy.  Chase,  C.  J.,  and  Clifford,  J.,  while 
concurring  in  the  judgment  of  the  court,  dissented  from 
the  reasoning  on  which  the  majority  of  the  court  were 
agreed,  and  held  that  the  statute  was  unconstitutional 

1  6  Wall.  35.  2  8  Wall.  123. 

3  The  Passenger  Cases.  7  How.  283;  Cooley  v.  Board  of  Wardens,  12  id. 
299;  Oilman  v.  Philadelphia,  3  Wall. 713. 


RAILWAY    TRANSPORT ATIOJS".  135 

because  it  imposed  "  a  burden  upon  commerce  among 
the  several  states/'  Curiously  enough,  Crandall  v. 
Nevada  is  constantly  referred  to  in  the  later  judgments 
of  the  court  as  if  it  had  been  decided  on  the  ground 
taken  in  the  dissenting  judgment  of  Chase,  C.  J.,  and 
Clifford,  J.  Next  comes  the  case  of  The  State  Freight 
Tax,1  in  which  a  statute  of  Pennsylvania  having  imposed 
on  all  freight  transporting  companies  a  tax,  varying 
according  to  the  character  of  freight  transported  in  rate 
from  2  to  5  cents  for  each  2,' '00  pounds  of  freight 
moved  without  regard  to  distance,  the  question  was 
whether  the  statute  was  constitutional,  so  far  as  it 
affected  freight  taken  up  within  the  state  and  carried 
out  of  it,  or  taken  up  without  the  state  and  brought 
within  it,  and  the  court  held  that  the  statute  was  void 
as  an  attempted  regulation  of  interstate  commerce. 
Strong,  J.,  in  delivering  the  judgment  of  the  court,  said,2 
"  we  concede  the  right  and  power  of  the  state  to  tax  the 
franchises  of  its  corporations,  and  the  right  of  the  owner 
of  artificial  highways,  whether  such  owners  be  the  state, 
or  grantees  of  franchises  from  the  state,  to  exact  what 
they  please  for  the  use  of  their  ways.  That  right  is  an 
attribute  of  ownership.  But  this  tax  is  not  laid  upon 
the  franchises  of  the  corporation,  nor  upon  those  who 
hold  a  part  of  the  state's  eminent  domain.  It  is  laid 
upon  those  who  deal  with  the  owners  of  the  highways 
or  means  of  conveyance.  The  state  is  not  herself  the 
owner  of  the  roadways,  nor  of  the  motive  power.  The 
tax  is  not  compensation  for  services  rendered  by  her,  cr 
by  her  agents.  It  is  something  beyond  the  cost  of 
transportation  or  the  ordinary  charges  therefor.  Hav- 
ing no  ownership  in  the  railroads  or  canals,  the  state  has 
no  title  to  their  incomes,  except  so  far  as  she  has  reserved 
it  in  the  charters  of  the  companies.  Tolls  and  freights 

1  15  Wall.  232.  2  p.  277. 


136  COMMERCE. 

are  a  compensation  for  services  rendered  or  facilities 
furnished  to  a  passenger  or  transporter.  These  are  not 
rendered  or  furnished  by  the  state.  A  tax  is  a  demand 
of  sovereignty ;  a  toll  is  a  demand  of  proprietorship. 
The  tax  levied  by  this  act  is,  therefore,  not  a  toll.  It 
is  not  exacted  in  compensation  for  the  use  of  the  road- 
way ;  and  if  it  were,  the  right  to  make  terms  for  the  use 
of  the  roadway  is  in  the  grantee  of  the  franchises,  not 
in  the  grantor.  But,  in  truth,  the  state  has  no  more 
right  to  demand  a  portion  of  the  tolls  which  the 
grantees  of  her  franchises  may  exact,  than  she  would 
have  to  demand  a  portion  of  the  rents  of  the  land  which 
she  had  sold.  She  may  tax  by  virtue  of  her  sover- 
eignty, and  measure  the  tax  by  income,  but  the  income 
itself  is  beyond  her  reach."  Swayne  and  Davis,  JJ., 
dissented,  on  the  grounds  that  the  tax  in  question  was 
"  imposed  on  the  business  of  those  required  to  pay  it," 
and  that  the  specification  of  tonnage  was  "  only  the  mode 
of  ascertaining  the  extent  of  the  business,"  no  discrimi- 
nation being  "  made  between  freight  carried  wholly 
within  the  state,  and  that  brought  into  or  carried  out 
of  it."  In  Erie  Railway  v.  Pennsylvania,1  the  question 
was  as  to  the  validity  of  the  same  tax  as  affecting  a  rail- 
way corporation  chartered  by  the  state  of  New  York, 
but  authorized  by  statutes  of  Pennsylvania  to  construct 
a  portion  of  its  line  within  that  state,  and  the  court  held 
the  tax  void.  In  Pickard  v.  Pullman  Southern  Car 
Co.,2  the  facts  were  that  the  Constitution  of  the  state  of 
Tennessee,  having  authorized  the  state  legislature  to  tax 
"privileges"  in  its  discretion,  and  a  statute  of  the  state 
having  declared  "  the  running  and  using  of  sleeping- 
cars  or  coaches  on  railroads  in  Tennessee  not  owned  by 
the  railroads  upon  which  they  are  run  or  used  "  to  be  a 
"  privilege,"  and  as  such  to  be  subject  to  an  annual  tax 

1  15  Wall.  282,  note.  2  117  U.  S.  34. 


KAILWAY    TRANSPORTATION.  137 

of  $50  for  each  car,  and  the  Pullman  Southern  Car  Co., 
a  corporation  created  by  the  state  of  Kentucky  and 
having  its  principal  office  at  Louisville  in  that  state, 
being  the  owner  of  certain  sleeping-cars,  leased  them  to 
certain  railroad  companies  who  used  them  in  the  trans- 
portation of  passengers  into,  through,  or  out  of  the 
state  of  Tennessee,  the  car  company  receiving  the  extra 
fare  paid  by  the  passengers  for  berths  and  seats  in  the 
cars.  The  state  of  Tennessee  having  demanded  from 
the  Car  Co.  payment  of  the  "  privilege "  tax,  it  was 
paid  under  protest,  and  the  company  having  brought 
an  action  against  the  State  Comptroller  to  recover  the 
amount  of  the  tax,  a  judgment  in  its  favour  was  af- 
firmed by  the  court,  on  the  grounds,  as  stated  by  Blatch- 
ford,  J.,  that  the  tax  was  a  charge  upon  the  interstate 
transportation  of  passengers,  and,  therefore,  void  as  an 
attempted  regulation  of  interstate  commerce.1  In  Fargo 
v.  Michigan,2  the  facts  were  that  the  state  of  Michigan 
having  by  statute  imposed  a  tax  on  the  gross  receipts 
of  corporations  " engaged  in  the  business  of  running 
cars  over  any  of  the  railroads  of  this  state,"  and  the 
Merchants'  Dispatch  Transportation  Co.,  a  corpora- 
tion organized  under  the  laws  of  the  state  of  New 
York,  being  the  owner  of  certain  freight  cars  which 
were  used  for  the  transportation  of  freight  from  points 
without  the  state  of  Michigan  to  points  within  that 
state,  and  from  points  within  that  state  to  points 
without  that  state,  and  also  between  other  states  but 
passing  through  the  state  of  Michigan,  and  having, 
under  protest,  made  return  to  the  commissioner  of  rail- 
roads of  the  state  of  Michigan  of  its  gross  receipts, 
including  inter  alia  a  sum  of  $28,890.01  "received  for 

1  In  Tennessee  v.  P.  S.  C.  Co.,  117  U.  S.  51,  the  doctrine  was  reiterated  with 
regard  to  an  annual  "privilege"  tax  of  $75  on  each  sleeping-car  imposed  by 
the  Tennessee  statute  of  1881. 

2  121  U.  S.  230. 


138  COMMERCE. 

the  transportation  of  freight  from  points  without  to 
points  within  the  state  of  Michigan,  and  from  points 
within  to  points  without  that  state,"  filed  in  a  court  of 
the  state  of  Michigan,  its  bill  in  equity  against  the 
Auditor-General  of  Michigan,  praying  an  injunction  to 
restrain  him  from  collecting  the  tax  on  those  gross  re- 
ceipts, and  a  decree  dismissing  the  plaintiff's  bill  was 
reversed  by  the  court,  in  a  judgment  delivered  by  Mil- 
ler, J.,  on  the  ground  that  the  statute  of  Michigan  was, 
so  far  as  it  taxed  receipts  from  interstate  commerce,  void 
as  an  attempted  regulation  thereof,  the  case  of  the  State 
Tax  on  Railway  Gross  Receipts1  being  distinguished  by 
the  facts,  that  the  corporation  taxed  in  that  case  was  a 
corporation  exercising  a  franchise  granted  to  it  by  the 
taxing  state,  and,  as  such,  taxable  by  that  state,  and  its 
gross  receipts  having  passed  into  the  treasury  of  the  cor- 
poration were  as  much  subject  to  taxation  as  any  other 
money  within  the  state,  whereas,  in  the  case  at  bar,  the 
corporation  whose  gross  receipts  were  sought  to  be 
reached  was  a  corporation  of  a  state  other  than  the 
taxing  state,  and,  "the  money  which  it  received  for 
freight  carried  within  the  state  probably  never  was 
within  the  state,  being  paid  to  the  company,  either  at 
the  beginning  or  the  end  of  its  route,  and  certainly,  at 
the  time  the  tax  was  levied,  it  was  neither  money  nor 
property  of  the  corporation  within  the  state  of  Michi- 
gan." The  case  of  the  Philadelphia  and  Southern 
Steamship  Co.  v.  Pennsylvania,2  though  not  a  case  of 
railway  transportation,  must  be  here  referred  to,  for  it 
overrules  the  case  of  the  State  Tax  on  Railway  Gross 
Receipts.3  The  facts  were,  that  a  statute  of  Pennsyl- 
vania enacted  in  1877,  having  imposed  upon,  inter  alia, 
steamboat  companies,  doing  business  in  the  Common- 
wealth and  in  any  way  engaged  in  the  business  of 

1  15  Wall  284.  2  122  U.  S.  326.  8  15  Wall.  284. 


RAILWAY    TRANSPORTATION.  139 

transporting  freight  or  passengers,  a  tax  upon  the  gross 
receipts  of  the  company  for  tolls  and  transporta- 
tions, and  the  Philadelphia  and  Southern  Steamship 
Company,  a  corporation  created  by  the  state  of  Pennsyl- 
vania, and  engaged  in  the  business  of  operating  sea- 
going steamships  enrolled,  registered,  and  licensed  under 
the  laws  of  the  United  States  for  the  coasting  or  foreign 
trade  of  the  United  States,  and  engaged  in  the  business 
of  ocean  transportation  of  passengers  and  freight  between 
different  states  of  the  United  States  and  between  the 
United  States  and  foreign  countries,  having  resisted 
payment  of  the  tax  in  question,  the  court  held  that  on 
the  facts  thus  stated  the  company  was  not  liable, 
Bradley,  J.  delivering  judgment,  and  holding  that 
taxation  of  ocean  transportation  u  either  by  its  tonnage, 
or  its  distance,  or  by  the  number  of  trips  performed,  or 
in  any  other  way,  would  certainly  be  a  regulation  of 
the  commerce,  a  restriction  upon  it,  a  burden  upon 
it  ;"L  that  foreign  commerce  having  been  fully  regulated 
by  Congress,  "  any  regulations  imposed  by  the  states 
upon  that  branch  of  commerce  would  be  a  palpable 
interference,"  and  that  in  whatever  respects  Congress 
has  not  regulated  interstate  commerce,  "its  inaction 
.  .  .  is  equivalent  to  a  declaration  that  it  shall  be 
free,  in  all  cases  where  its  power  is  exclusive ;  and  its 
power  is  necessarily  exclusive  wherever  the  subject- 
matter  is  national  in  its  character  and  properly  admits 
of  only  one  uniform  system ;"  that  "interstate  commerce 
carried  on  by  ships  on  the  sea  is  surely  of  this  charac- 
ter;" and  that  the  state  cannot  tax  such  transportation, 
nor  the  fares  and  freights  received  therefor.  Bradley, 
J.,  then  dealt  with  the  case  of  the  State  Tax  on  Rail- 
way Gross  Receipts,2  and  quoting  in  substance,  the  first 
ground  on  which  the  judgment  in  that  case  was  based, 

1  p.  330.  2  15  Wall.  234. 


140  COMMERCE. 

namely,  "  that  the  tax  being  collectible  only  once  in  six 
months,  was  laid  upon  a  fund  which  had  become  the 
property  of  the  company,  mingled  with  its  other  prop- 
erty, and  incorporated  into  the  general  mass  of  its 
property,  possibly  expended  in  improvements,  or  other- 
wise invested,"  he  replied,1  "the  tax  in  the  present  case 
is  laid  upon  the  gross  receipts  from  transportation  as 
such.  Those  receipts  are  followed  and  caused  to  be 
accounted  for  by  the  company,  dollar  for  dollar.  It  is 
those  specific  receipts,  or  the  amount  thereof,  which  is 
the  same  thing,  for  which  the  company  is  called  on  to 
pay  the  tax.  They  are  taxed  not  only  because  they  are 
money,  or  its  value,  but  because  they  were  received  for 
transportation.  ...  If  such  a  tax  is  laid,  and  the 
receipts  taxed  are  those  derived  from  transporting  goods 
and  passengers  in  the  way  of  interstate  or  foreign  com- 
merce, no  matter  when  the  tax  is  exacted,  whether  at 
the  time  of  realizing  the  receipts,  or  at  the  end  of  six 
months  or  a  year,  it  is  an  exaction  aimed  at  the  com- 
merce itself,  and  it  is  a  burden  upon  it,  and  seriously 
affects  it."  Bradley,  J.,  next  met  the  second  ground 
taken  in  the  case  of  the  "  State  Tax  on  Railway  Gross 
Receipts,"  namely  that  the  tax  was  imposed  "  upon  the 
franchise  of  the  corporation  granted  to  it  by  the  state," 
and,  in  reply  to  that,  Avhile  conceding,  that2  "the  cor- 
porate franchises,  the  property,  the  business,  the  income 
of  corporations  created  by  a  state  may  undoubtedly  be 
taxed  by  the  state,"  he  pointed  out,  that  "  a  tax  on  the 
franchise  of  doing  business,  which,  in  this  case,  is  the 
business  of  transportation  in  carrying  on  interstate 
and  foreign  commerce,  would  clearly  be  unconstitu- 
tional."3 

55.  Congress,  by  the  Act  of  24  July,  1866,4  authorized 

1  p.  341.  3  p.  342. 

2  p.  345.  *  14  Stat.  221,  Eev.  Stat.  Sec.  5263  et  seq. 


TELEGRAPHS.  141 

any  telegraph  company  organized  under  the  laws  of 
any  state,  "to  construct,  maintain,  and  operate  lines  of 
telegraph,  through  and  over  any  portion  of  the  public 
dominion  of  the  United  States,  over  and  along  any  of 
the  military  or  post  roads  of1  the  United  States  which 
may  have  been,  or  may  hereafter  be  declared  such  by 
act  of  Congress,  and  over,  under,  or  across  the  navi- 
gable streams  or  waters  of  the  United  States,"  upon 
certain  conditions,  including,  inter  alia,  a  concession  by 
the  company  of  priority  to  government  messages  at 
rates  to  be  fixed  annually  by  the  Postmaster  General,  a 
reservation  to  the  government  of  the  privilege  of  pur- 
chasing the  lines,  property,  and  effects  of  the  company 
at  an  appraised  value,  and  a  written  acceptance  by  the 
company  of  the  restrictions  and  obligations  of  the  act. 
This  act  has  been  subjected  to  judicial  consideration  in 
three  cases.  In  P.  T.  Co.  v.  W.  U.  T.  Co.,2  the  facts 
were  that  the  state  of  Florida  had  by  an  act  of  Ib66 
granted  to  the  P.  T.  Co.  a  monopoly  of  the  business  of 
telegraphing,  and  the  W.  U.  T.  Co.,  having  in  1867 
accepted  the  terms  imposed  by  the  act  of  Congress,  had 
in  1874  begun  under  a  license  from  the  P.  &  L.  E.  R. 
Co.  the  erection  of  a  telegraph  line  upon  the  right  of 
way  of  that  railway,  the  railway  having  also  assigned 
to  the  W.  U.  T.  Co.  rights  vested  in  it  by  statutes  of 
the  state  of  Florida  enacted  in  1873  and  1874,  and 
authorizing  it  to  construct,  maintain,  and  operate  a 
telegraph  line  along  the  line  of  the  railway.  Before 
the  W.  U.  T.  Co.  had  completed  the  construction  of 
its  line,  the  P.  T.  Co.  filed  a  bill  in  equity  in  a  Circuit 
Court  of  the  United  States  to  restrain  the  W.  U.  T. 
Co.  from  interfering  with  the  monopoly  vested  in  the 

1  Congress,  by  Act  of  8  June,  1872,  c.  335,  17  Stat.  308,  Kev.  Stat.  Sec.  3964 
et  seq.,  declares  all  railway  lines  in  the  United  States  to  be  post  roads. 

2  96  U.  S.  1. 


142  COMMERCE. 

plaintiff  by  the  Florida  statute  of  I860,  and  the  Circuit 
Court  having  dismissed  the  bill,  its  decree  was  affirmed 
in  the  Supreme  Court,  the  ground  of  decision  being 
that  the  power  to  regulate  commerce  is  not  confined  to 
the  instrumentalities  of  commerce,  known  or  in  use 
when  the  Constitution  was  adopted ;  that  telegraphic 
communication  is  commercial  intercourse  and,  as  such, 
subject  to  congressional  regulation ;  that  the  Act  of 
Congress  of  24  July,  1866,  is  a  legitimate  regulation  of 
interstate  commercial  intercourse,  in  that  it  declares  in 
substance  "that  the  erection  of  telegraph  lines  shall,  so 
far  as  state  interference  is  concerned,  be  free  to  all  who 
will  submit  to  the  conditions  imposed  by  Congress,"1 
that,  as  the  statute  confers  a  right  to  use  public  property 
and  authorizes  the  use  of  private  property  only  by  the 
consent  of  its  owner,  there  is  therein  no  interference 
with  the  reserved  rights  of  the  states ;  and  that  the 
exclusive  monopoly  vested  by  the  Florida  Act  of  1866 
in  the  P.  T.  Co.  was  void  as  an  attempted  regulation 
of  interstate  commerce.  In  W.  U.  T,  Co.  v.  Texas,2 
the  only  question  was  as  to  the  right  of  the  state  of 
Texas  to  tax  the  telegraph  company,  upon  the  mes- 
s-iges  transmitted  by  it,  the  company  relying  upon  its 
acceptance  of  the  act  of  Congress,  and  resisting  the  tax 
so  far  as  concerned  the  messages  transmitted  to  points 
outside  of  the  state,  and  the  messages  sent  over  its  lines 
by  officers  of  the  United  States  on  public  business ;  and 
the  court  held,  that  the  burden  of  the  tax  being  im- 
posed on  the  messages  sent,  it  was  void,  as  a  regulation 
of  interstate  commerce,  so  far  as  regarded  the  messages 
sent  to  points  without  the  state,  and  as  an  interference 
with  the  means  employed  by  the  government  of  the 
United  States  in  the  execution  of  its  constitutional 
powers,  so  far  as  regarded  the  messages  of  the  govern- 

1  per  Waite,  C.  J.,  96  U.  S.  11.  2  105  U.  S.  460. 


INDIAN   TRIBES.  143 

ment.  In  W.  U.  T.  Co.  v.  Pendleton,1  the  question  was 
n.s  to  the  validity  of  a  statute  of  Indiana,  which  under- 
took to  regulate  the  delivery  in  other  states  of  messages 
transmitted  from  places  in  the  state  of  Indiana,  by 
requiring  under  certain  conditions  a  delivery  of  the 
messages  to  the  person  addressed  by  special  messenger, 
and  the  court  held  the  statute  void  as  an  interstate 
regulation  of  commerce,  so  far  as  regarded  its  intended 
extra-territorial  effect.  It  may,  therefore,  be  regarded 
as  settled,  that  the  trasmission  of  messages  by  telegraph 
is,  within  the  meaning  of  the  Constitution, "commerce;" 
and  that  as  interstate  commerce,  it  is  subject  to  congres- 
sional regulation  and  exempt  from  state  control  or 
interference. 

56.  The  Indian  tribes  are  not  foreign,  but  domestic 
and  dependent  nations;  their  relation  to  the  United 
States  resembles  that  of  a  ward  to  his  guardian;  and 
they  are  completely  under  the  sovereignty  and  dominion 
of  the  United  States.  They,  therefore,  cannot  sue  in  the 
courts  of  the  United  States  as  foreign  states.  The  reg- 

1  122U.  S.  347. 

2  Waite,  C.  J.,  said  in  Telegraph  Co.  v.  Texas,  105  U.  S.  460,  464,  "a  tele- 
graph company  occupies  the  same  relation  to  commerce  as  a  carrier  of  mes- 
sages, that  a  railroad  company  does  as  a  carrier  of  goods.     Both  companies  are 
instruments  of  commerce,  and  their  business  is  commerce  itself.     They  do 
their  transpor  ition  in  different  w ays,  and  their  liabilities  are  in  some  respects 
different,  but  they  are  both  indispensable  to  those  engaged  to  any  considerable 
extent  in  commercial  pursuits."     In  W.  U.  T.  Co.  v.  Pendleton,  122  U.  S.  3o(>, 
Field,  J.,  said,  "although  intercourse  by  telegraphic  messages  between  the 
states  is  thus  held  to  be  interstate  commerce,  it  differs  in  material  particulars 
from  that  portion  of  commerce  with  foreign  countries  and  between  the  stutes 
which  consists  in  the  carriage  of  persons  and  the  transportation  and  exchange 

of  commodities It  differs  not  only  in  the  subjects  which  it  transmits. 

but  in  the  means  of  transmission.     Other  commerce  deals  only  with  persons, 
or  with  visible  and  tangible  things.     But  the  telegraph  transports  nothing 
visible  and  tangible;  it  carries  only  ideas,  wishes,  orders,  and  intelligence. 
Other  commerce  requires  the  constant  attention  and  supervision  of  the  earner 
for  the  safety  of  the  persons  and  property  carried.     The  message  of  the  tele- 
graph passes  at  once  beyond  the  control  of  the  sender,  and  reaches  the  office 
to  which  it  is  sent  instantaneously." 

3  Cherokee  Nation  v.  Georgia,  5  Pet.  1 ;  Worcester  v.  Same,  6  id.  515. 


144  COMMERCE. 

ulation  of  the  relation  between  the  several  states  and 
the  Indian  tribes  is  exclusively  vested  in  the  United 
States,  and  state  laws  cannot  operate  within  an  Indian 
reservation.1  Congress,  under  the  power  to  regulate 
commerce  with  the  Indian  tribes,  may  constitutionally 
forbid  the  sale  of  spirituous  liquors  to  all  persons  be- 
longing to  Indian  tribes  within  the  territorial  limits  of 
a  state,  even  outside  the  bounds  of  an  Indian  reserva- 
tion,2 and  it  is  competent  for  the  United  States,  in  the 
exercise  of  the  treaty-making  power,  to  stipulate  in  a 
treaty  with  an  Indian  tribe,  that  the  introduction  and 
sale  of  spirituous  liquors  shall  be  prohibited  within 
certain  territories  ceded  by  the  tribe  to  the  United 
States,  and  such  stipulation  operates  proprio  vigofe,  and 
is  binding  though  the  ceded  territory  be  within  the 
limits  of  an  organized  county  of  one  of  the  United 
States.3 

1  Worcester  v.  Georgia,  6  Pet.  515. 

2  United  States  v.  Holliday ;  Same  v.  Haas  3  Wall.  407. 

3  U.  S.  v.  43  gallons  of  whisky,  93  U.  S.  188.    As  to  the  term  "  Indinn 
country,"  see  Ex  parte  Crow  Dog,  109  U.  S.  556 ;  U.  S.  v.  Le  Bois,  121  id.  278. 
The  subject  of  the  exercise  by  the  states  of  their  powers  of  taxation,  and  of 
police  regulation,  as  affecting  commerce,  is  more  fully  treated  in  other  chap- 
ters of  this  book. 


CHAPTER  V. 

THE    IMPAIRMENT    OF    THE    OBLIGATION     OF    CONTRACTS. 

57.  The  prohibition  affects  only  laws  passed  by  states. 

58.  The  term  "  law"  defined. 

59.  Judgments  of  state  courts  not  conclusive  either  as  to  the  non-existence, 

or  non  impairment,  of  contracts. 

60.  The  obligation  of  a  contract  defined. 

61.  Legislation  as  to  remedies. 

62.  The  term  ''  contracts  "  defined. 
03.  State  insolvent  laws. 

64.  Judgments  as  contracts. 
6").  Municipal  taxation. 

66.  History  of  the  prohibition. 

67.  State  grants. 

68.  Express  contracts  of  exemption  from  taxation. 

69.  Express  grants  of  peculiar  privileges. 

70.  Contracts  between  a  state  and  its  political  subdivisions. 

71.  Implied  contracts  in  charters  of  incorporation. 

72.  Implied  corporate  exemption  from  taxation. 

73.  Implied  grants  of  peculiar  privileges. 

74.  Implied  exemption  from  the  operation  of  the  police  power. 

75.  Implied  contracts  as  to  matters  of  public  concern. 

76.  The  withdrawal  by  a  state  of  its  consent  to  be  sued. 

77.  The  force  and  effect  of  the  prohibition  as  construed  by  the  Supreme 

Court. 

57.  Section  10  of  article  I  of  the  Constitution  declares 
that  "  no  state  shall  .  .  .  pass  any  .  .  .  law  impair- 
ing the  .  obligation  of  contracts."  This  prohibition 
does  not  in  terms  affect  the  exercise  of  legislative  power 
by  the  government  of  the  United  States,  and  not  only 
is  there  not  in  the  Constitution  any  similar  prohibition 
with  regard  to  the  United  States,  but  by  the  grant  of 
power  to  Congress,  "  to  establish  .  .  .  uniform  laws 
on  the  subject  of  bankruptcies  throughout  the  United 
10  145 


146          IMPAIRMENT  OF  CONTRACTS. 

States,"  l  authority  is  expressly  conferred  to  impair  the 
obligation  of  contracts  between  debtors  and  creditors  ;2 
and  under  the  doctrine  of  the  implied  powers,  as  con- 
strued by  the  court,  Congress  may  impair  the  obligation 
of  contracts  by  authorizing  the  issue  of  notes  which  shall 
be  a  legal  tender  in  satisfaction  of  antecedently  con- 
tracted debts.3  The  constitutional  prohibition  is  like- 
wise inoperative  with  regard  to  the  acts  of  any  politi- 
cal organization,  which  at  the  time  of  the  adoption  of 
the  act  in  question,  is  not  one  of  the  United  States ; 
thus,  the  Constitution  having,  under  the  resolution  of 
the  Convention  of  1787  and  the  Act  of  Congress  of 
February,  1788;  gone  into  effect  on  the  first  Wednes- 
day of  March,  1789,  a  statute  enacted  by  the  state  of 
Virginia  in  1788  was  not  affected  by  the  constitutional 
prohibition.4  So,  also,  a  statute  enacted  by  the  republic 
of  Texas  before  its  admission  into  the  United  States 
as  the  state  of  Texas  could  not  be  held  to  be  void  for 
repugnancy  to  this  clause  of  the  Constitution.5 

58.  The  prohibition  of  the  passage  by  a  state  of  any 
"  law  impairing  the  obligation  of  contracts."  would,  if 
strictly  construed,  include  under  the  word  "law  "  only 
statutes  enacted  by  state  legislatures,  but  it  has  been 
determined  that  the  word  "law"  comprehends,  in 
addition  to  acts  of  legislation,  state  constitutions  and 
constitutional  amendments;6  judicial  decisions  of  state 


1  Article  I,  Section  9. 

2  Sturges  v.  Crowninshield,  4  Wheat.  122,  194. 

3  Supra,  Chapter  II. 

4  Owings  v.  Speed.  5  Wheat.  420. 

5  League  v.  De  Young,  11  How.  185,  203.     See  also  Scott  v.  Jones,  5  How. 
343,  378. 

6  O.  &  M.  R.  R  v.  McClure,  10  Wall.  511 ;  White  v.  Hart,  13  id.  646  ;  Os- 
born  v.  Nicholson,  ibid.  654;  Gunn  v.  Barry,  15  id.  610 ;  County  of  Moultrie  v. 
Rockingham  T.  C.  S.  Bank,  92  U.  S.  631  ;  Edward  v.  Kerzey,  96  id.  595; 
Keith  v.  Clark,  97  id.  454;  N.  O.  Gas  Co.  v.  Louisiana  Light  Co.,  115  id.  650; 
Fisk  v.  Jefferson  Police  Jury,  116  id.  631. 


LAW    DEFINED.  147 

courts  of  last  resort,  rendered  subsequently  to  the 
making  of  the  contract  in  question,  and  antecedently 
to  the  suit  in  which  the  court  determines  the  invalidity 
of  the  contract,  and  altering  by  construction  the  Consti- 
tution and  statutes  of  the  state  in  force  when  the  contract 
was  made;1  and,  in  general,  any  act  or  order,  from 
w.iatever  source  emanating,  to  which  a  state,  by  its 
enforcement  thereof,  gives  the  force  of  a  law;  as,  for 
i:i.sLi;ice,  a  statute  enacted  by  the  congress  of  the  Con- 
fe  I -3 racy  and  enforced  during  the  war  of  the  rebellion 
by  a  court  of  a  state  within  the  insurgent  lines.2  Ob- 
viously the  law,  which  is  alleged  to  have  impaired  the 
obligation  of  the  contract  must  have  been  enacted  sub- 

o 

sequently  to  the  making  of  the  contract,  for  a  law 
enacted  antecedently  to  the  making  of  the  contract  can 
be  said  to  have  entered  into,  and  become  part  of,  the 
contract.3  The  judgment  of  the  state  court  in  the 
cause,  determining  the  particular  contract  to  be  invalid, 
cannot  be  said  to  be  a  law  impairing  the  obligation  of  the 
contract,  for  otherwise  the  federal  court  of  last  resort 
would  be  called  upon  to  u  re-examine  the  judgments  of 
the  state  courts  in  every  case  involving  the  enforcement 
of  contracts."  As  Harlan,  J.,  said  in  Lehisjh  Water 


1  Gelpcke  v.  Dubuque,  1  Wall.  175;  Olcott  v  The  Supervisors,  ibid.  678 ; 
Chicago  v.  Sheldon,  9  id.  50;  The  City  v.  Larason,  ibid.  477 ;  Douglass  v.  The 
County  of  Pike,  101  U.  S.  677;  County  of  Rolls  v.  Douglass,  105  id.  7:28; 
Haverneyer  v.  Iowa  County,  3  Wall.  29  I.    This  doctrine  was  first  suggested  by 
Tuney,  C.  J.,  who  said   in  Ohio   L.   I.  &  T.  Co.  v.  Debolt,  16  How.  432,  "  the 
sound  and  true  rule  is,  that   if  the  contract  when  made  was  valid  bv  the  laws 
of  the  state,  as  then  expounded  by  all  the  departments  of  its  government  and 
administered  in  its  courts  of  justice,  its  validity  and  obligation  cannot  be  im- 
paired by  any  subsequent  act  of  the  legislature  of  the  state,  or  decision  of  its 
courts,  altering  the  construciion  of  the  law;"  and  in  Gelpcke  v.  Dubuque,  1 
Wall.  206,  Sway ne,  J  ,  quoted  the  dictum  of  Taney,  C.  J.,  and  declared  it  to  be 
"  the  law  of  this  court." 

2  Williams  r.  Bruffy,  96   U.  S.  176;  Stevens  v.  G riffi^l U^IL  S.  48;  Ford 
v.  Snrget,  97  U.  S.  594.  /^^^- 'B^J^ 

3  L.  W  Co.  v.  Easton,  121  U.  S.  388,  391.    ff  ^  ^r\ 

(   UNIVERSITY  ) 


148  IMPAIRMENT    OF    CONTRACTS. 

Co.  v.  Easton/  "  the  state  court  may  erroneously  deter- 
mine questions  arising  under  a  contract,  which  consti- 
tutes the  basis  of  the  suit  before  it ;  it  may  hold  a  con- 
tract to  be  void,  which,  in  our  opinion,  is  valid ;  it  may 
adjudge  a  contract  to  be  valid,  which,  in  our  opinion, 
is  void ;  or  its  interpretation  of  the  contract  may,  in 
our  opinion,  be  radically  wrong;  but,  in  neither  of 
such  cases,  would  the  judgment  be  reviewable  by  this 
court  under  the  clause  of  the  Constitution  protecting 
the  obligation  of  contracts  against  impairment  by  state 
legislation,  and  under  the  existing  statutes  defining 
and  regulating  its  jurisdiction,  unless  that  judgment  in 
terms,  or  by  its  necessary  operation,  gives  effect  to  some 
provision  of  the  state  Constitution,  or  some  legislative 
enactment  of  the  state,  which  is  claimed  by  the  unsuc- 
cessful party  to  impair  the  obligation  of  the  particular 
contract  in  question."2  It  must,  therefore,  appear  in  any 
cause  in  which  it  is  sought  to  reverse  in  the  Supreme 
Court  of  the  United  States,  a  decree  or  judgment  of  a 
state  court  for  contravention  of  the  constitutional  pro- 
hibition of  the  impairment  of  contracts,  that  in  the 
particular  case  the  state  court  enforced  to  the  prejudice 
of  the  plaintiff  in  error  some  act  of  state,  either  in  the 
form  of  a  state  Constitution,  or  an  act  of  the  state  legis- 
lature, or  a  judgment  of  a  court  in  another  case,  or  an 
act  of  an  extrinsic  authority  to  which  the  state  by  its 
adoption  thereof  gave  the  force  of  law,  and  that  the  act 
of  state,  whatever  its  form,  was  as  affecting  the  contract 
put  into  operation  subsequently  to  the  making  of  that 
contract. 

59.  In  questions  under  this  clause  of  the  Constitution 

1  121  U.  S.  388,  392. 

2  See  also:  K.  K.  v.  Kock,  4  Wall.  177,  181  ;  R.  R.  v.  McClure,  10  Wall. 
511,  515;  Knox  v.  Exchange  Bank,  12  id.  379,  383;  Delmas  v.  Ins  Co.,  14  id. 
601,  660  ;  University  v.  People,  99  U.  S.  309,  319  ;  C.  L.  Ins.  Co.  v.  Needles,  113 
id.  574,  582. 


ACTION    UPON    REMEDIES.  149 

the  courts  of  the  United  States  do  not  accept  as  con- 
clusive upon  them  the  judgment  of  the  state  court 
either  as  to  the  non-existence  of  contracts  or  as  to 
their  non-impairment,1  for,  if  the  decision  of  the  state 
court  were  to  be  accepted  without  inquiry  or  examina- 
tion, the  constitutional  prohibition  would  be  nugatory. 

GO.  The  obligation  of  a  contract  is  the  duty  of  per- 
formance which  the  law  imposes  on  one,  or  other,  or 
both  of  the  parties  to  the  contract.2  As  Marshall,  C. 
J.,  said  in  the  case  last  cited,  "any  law  which  releases 
a  part  of  this  obligation  must  in  the  literal  sense  of  the 
word  impair  it."  Of  course,  the  application  of  the  con- 
stitutional prohibition  is  not  dependent  on  the  extent  of 
the  impairment.3 

61.  A  state  may,  without  impairment  of  the  obliga- 
tion of  a  contract,  regulate,  or  even  limit,  the  remedies 
for  the  enforcement  of  that  contract,  provided  that  it 
does  not  take  away  all  remedies  therefor,  and  that  it 
leaves  in  force  a  substantial  remedy.  Thus  a  state  may 
in  the  case  of  a  corporation  whose  charter  requires  that 
service  of  process  on  the  corporation  shall  be  made  only 
at  its  principal  office  provide  by  subsequent  legislation 
that  such  process  may  be  served  on  any  officer,  clerk,  or 
agent  of  the  corporation.4  A  state  may  abolish  im- 
prisonment for  debt  as  a  remedy  for  breach  of  con- 
tract;5 it  may  validate  technically  defective  mortgages,6 
or  conveyances  by  femes  covert;7  it  may  by  statute 

1  State  Bank  v.  Knopp,  16  How.  369;  Ohio  L.  T.  &  T.  Co.  v.  De  Bolt,  ibi<l. 
416;  J.  B.  Bank  v.  Skelly.  1  Black.  436;  Bridge  Proprietors  v.  Hoboken  Co., 
1  Wall.  116;  Delrnas  v.  Insurance  Co.,  14  id.  661;  Wright  v.  Nagle,  101   U. 
8.  791 ;  Williams  v.  Louisiana,  103  id.  637 ;  L.  &  N.  R.  R.  v.  Palmes,  109  id. 
244. 

2  iSturges  v.  Crowninshield,  4  Wheat.  197. 

3  Green  v.  Biddle,  8  Wheat.  1.  *  Railroad  r.  Hecht,  95  U.  S.  168. 

5  Mason  r.  Haile,  12  Wheat.  327  ;  Penniman's  Case,  103  id.  714. 

6  Gross  r.  U.  S.  Mortgage  Co.,  108  U.  S.  477. 

7  Randall  v.  Kreiger,  23  Wall.  137. 


150  IMPAIRMENT    OF    CONTRACTS. 

giMiit  new  trials  and  create  new  tribunals  to  set  aside 
grants  or  reverse  judgments  alleged  to  be  fraudulent;1 
it  may  provide  speedy  and  equitable  methods'  for  de- 
termining the  title  to  lands  under  patents  granted  by 
the  state;2  it  may  authorize  at  the  request  of  all  parties 
in  interest  the  discharge  of  testamentary  trustees  of 
real  estate;3  it  may  change  the  rate  of  interest  to  be 
paid  to  the  purchaser  in  tiie  case  of  the  redemption  of 
mortgaged  premises  sold  under  foreclosure;4  it  may 
repeal  usury  laws  which  urirepealed  would  have  avoided 
the  contract;5  it  may  prescribe  a  scheme  for  the  reor- 
ganization of  an  embarrassed  corporation  and  provide 
that  creditors  who  have  notice  of  and  do  not  dissent 
from  the  scheme  shall  be  bound  thereby;6  it  may  re- 
duce the  limitation  of  time  for  bringing  suit  provided 
that  a  reasonable  limit  elapses  after  the  enactment  be- 
fore the  limitation  bars  a  suit  upon  existing  contracts  ; ' 
it  may  require  registration  as  a  prerequisite  to  the  leg.il 
enforcement  of  existing  mortgages,  provided  that  a 
reasonable  period  be  allowed  before  the  law  goes  into 
effect;8  it  m:iy  require  holders  of  tax  sale  certificates  to 
give  notice  to  the  occupant  of  the  land,  if  any  there  be, 
before  taking  a  tax  deed  ; 9  it  may  require  registration 
with  municipal  officials  of  judgments  against  a  munici- 
pality ; 10  it  may  free  shareholders  of  a  corporation  from 
individual  liability  for  debts  of  the  corporation  to  an 

League  v.  De  Young,  11  How.  202. 
Jackson  v.  Lamphiere,  3  Pet.  208. 
Williamson  v.  Suydam,  6  Wall.  723. 
C.  M.  L.  Ins  Co.  v.  Cnshman,  108  U.  S.  51. 
Ewell  v.  Daggs,  108  U.  S.  143. 
Gilfillan  v.  Union  Canal  Co.,  109  U.  S.  401. 

Terry  v.   Anderson,  95  U.    S.  628;   Barrett  v.    Holmes,  102  id.    651; 
Koshkonong  v.  Burton,  104  id.  660. 

8  Vance  v.  Vance,  108  U.  S.  514. 

9  Curtis  v  Whitney,  13  Wall.  68. 

10  Louisiana  v.  New  Orleans,  102  U.  S.  203. 


ACTION   UPON    REMEDIES.  151 

amount  greater  than  their  shares,  for  such  legislation 
does  not  impair  the  direct  liability  of  the  corporation  ; l 
it  may,  after  a  state  bank  has  obtained  judgment  against 
a  party,  authorize  that  party  to  set  off  against  the  judg- 
ment circulating  notes  of  the  bank  procured  by  him 
after  the  entry  of  the  judgment  ;2  and,  a  disseised  tenant 
for  years  being  entitled  to  sue  on  the  landlord's  cove- 
nant for  quiet  possession  and  also  on  a  statutory  remedy 
for  forcible  entry  and  detainer,  the  state  may  take  away 
the  statutory  remedy,  provided  that  the  action  on  the 
covenant  be  left  unimpaired.3  A  state,  having  issued 
bonds,  and  having  by  a  subsequent  statute  provided  for 
the  funding  of  those  bonds  on  certain  terms  at  a  reduced 
rate  of  interest,  may,  by  a  later  statute,  prohibit  the 
funding  of  a  specified  class  of  those  bonds  until  by 
judicial  decree  their  validity  shall  have  been  deter- 
mined, for  the  original  remedy  of  the  bondholder  is  not 
thereby  impaired.4 

So  also,  a  state,  which  has  contracted  to  receive  its 
taxes  in  the  notes  of  a  certain  bank,  may,  by  statute, 
provide  that  the  only  remedy  for  taxpayers,  whose 
tender  of  such  notes  may  be  refused,  shall  be  to  pay  in 
legal  money  and  within  a  time  limited  to  bring  suit 
against  the  tax  collector,  judgment  against  whom  shall 
be  a  preferred  claim  against  the  state.5  So  also  where 
the  laws  of  a  state  permit  coupons  of  state  bonds  to  be 
received  in  payment  of  state  taxes,  provided  that  in  case 
of  the  refusal  of  such  coupons  when  tendered  the  holder 
thereof  might  enforce  his  rights  under  the  contract  by 
suing  out  an  alternative  mandamus  against  the  officer 
refusing  the  coupons,  and  if  judgment  should  be  rendered 


1  Ochiltree  v.  I.  R.  C.  Co.,  21  Wall.  249. 

2  Blount  v.  Windley,  95  U.  S.  173.  s  Drehman  v.  Stifle,  8  Wall.  595. 
*  Guarantee  Company  v.  Board  of  Liquidation,  105  U.  S.  622. 

6  Tennessee  v.  Sneed,  96  U.  S.  69. 


152  IMPAIRMENT   OF   CONTEACTS. 

in  favour  of  the  holder  of  the  coupons  that  he  could  then 
have  forthwith  a  peremptory  writ  of  mandamus  for  the 
recovery  of  damages  and  costs,  the  obligation  of  the  con- 
tract was  not  impaired  by  a  subsequent  statute  which 
required  in  case  of  the  refusal  of  the  tender  of  the 
coupons  a  payment  of  the  state  taxes  in  lawful  money 
and  a  lodging  of  the  coupons  in  a  state  court  of  compe- 
tent jurisdiction,  and  the  subsequent  framing  of  an  issue 
to  determine  whether  or  not  the  coupons  were  genuine 
and  legally  receivable  for  taxes,  with  a  right  of  appeal 
to  the  state  court  of  last  resort.1  On  the  other  hand,  a 
state,  in  acting  upon  the  remedy,  cannot  take  away  all, 
or  a  substantial  part,  of  the  power  for  the  enforcement 
of  a  contract.  It,  therefore,  cannot  prohibit  its  courts 
to  entertain  jurisdiction  of  a  suit  to  enforce  or  obtain 
damages  for  the  breach  of  a  class  of  contracts,  legally 
valid  when  made  ; 2  nor  can  a  state  forbid  its  courts, 
after,  the  abolition  of  slavery,  to  take  jurisdiction  of 
actions  upon  contracts  made  before  that  abolition  and 
the  consideration  for  which  was  the  price  of  slaves  ;3 
nor  could  a  state,  after  the  restoration  of  peace,  declare 
void  a  contract  made  between  its  citizens  during  the 
war  of  the  rebellion  stipulating  for  payment  in  con- 
federate notes  ;4  nor  can  a  state,  after  the  making  of  a 
contract,  change  to  the  prejudice  of  either  party  the 
measure  of  damages  for  its  breach  ;5  nor  can  a  state,  by 
subsequent  legislation,  impose  as  a  condition  precedent 
to  the  legal  enforcement  of  a  contractual  right,  that  he 
who  seeks  to  enforce  that  right  shall  prove  an  extrinsic 
and  independent  fact  that  has  no  necessary  connection 
with  the  right  to  be  enforced ;  as  for  instance  that  he 

1  Antoni  v.  Greenhow,  107  U.  S.  769  ;  Moore  v.  Same,  114  id.  338. 
8  Van  Hoffman  v.  Quincy,  4  Wall.  552. 

3  Wright  v.  Hart,  13  Wall.  646. 

4  Delmas  v.  Insurance  Co.,  14  Wall.  661. 

&  Effinger  v.  Kenney,  115  U.  S,  566;  W-  &  W.  R.  R.  v.  King,  95  id.  3. 


CONTRACTS    DEFINED.  153 

never  bore  arms  in  support  of,  or  never  aided,  the  re- 
bjllion  against  the  United  States; l  or  that  he  has  paid 
certain  taxes;  nor  can  it  permit  the  defendant  to  set  off 
damiges  not  caused  by  the  plaintiff;  as  for  instance  the 
defendant's  loss  of  property  resulting  from  the  war  of 
the  rebellion  ;2  nor  can  a  state,  after  a  judgment  has  been 
enrolled,  materially  increase  the  debtor's  exemption;3 
n  >r  am  a  state  afcer  the  making  of  a  mortgage  enlarge 
the  period  of  time  allowed  for  the  redemption  after 
foreclosure  ;4  nor  forbid  a  sale  in  foreclosure  at  which 
less  than  two-thirds  of  the  value  of  the  mortgaged  prem- 
ises as  fixed  by  appraisement  shall  be  realized ; 5  nor 
take  away  the  right  to  compound  interest,  if  given  by 
the  law  existing  at  the  time  of  the  making  of  the  con- 
tract; 6  nor  repeal  a  statute  in  force  at  the  time  of  mak- 
ing the  contract  which  renders  the  stock  of  a  share- 
holder liable  for  the  debts  of  the  corporation.7 

62.  The  term  "  contracts,"  as  used  in  the  constitu- 
tional prohibition,  includes  both  executory  and  executed 
contracts,8  comprehending,  within  the  former  class, 

1  Pierce  v.  Carskadon,  16  Wall.  234. 

2  Walker  v.  Whitehead,  16  Wall.  314. 

3  Gn nn  v.  Barry,  15  Wall.  610.  *  Howard  v.  Bugbee,  24  How.  461. 

5  Bronson  v.  Kinzie,  1   How.  311;    McCracken  v.  Hay  ward,  2  id.  608; 
Gartly  v.  Ewing,  3  id.  707. 

6  Koshkonong  v.  Burton,  104  U.  S.  668. 

7  Hawthorn  v.  Calef,  2  Wall.  210. 

8  "Contract"  is,  as  Field,  J.,  said  in  Louisiana  v.  Mayor  of  New  Orleans, 
109  U.  S.  285,  288,  "  used  in  the  Constitution  in  its  ordinary  sense  as  signify- 
ing the  agreement  of  two  or  more  minds  for  consideration   proceeding  from 
one  to  the  other  to  do  or  not  to  do  certain  acts."     In  Sturges  v.  Crowninshield, 
4  Wheat.  122,  197,  Marshall,  C.  J.,  said,  "a  contract  is  an  agreement  in  which 
a  party  undertakes  to  do  or  not  to  do  a  particular  thing."     Marshall,  C.  J., 
said  in  Fletcher  v.  Peck,  6  Cr.  87,  136,  "a  contract  is  a  compact  between  two 
or  more  parties,  and  is  either  executory  or  executed.     An  executory  contract 
is  one  in  which  a  party  binds  himself  to  do,  or  not  to  do,  a  particular  thing. 
.     .     .     .     A  contract  executed  is  one  in  which  the  object  of  contract  is  per- 
formed, and  this,  says  Blackstone,  differs  in  nothing  from  a  grant 

Since  then,  in  fact,  a  grant  is  a  contract  executed,  tt.e  obligation  of  which 
still  continues,  and  since  the  Constitution  uses  the  general  term  '  contracts,' 


154          IMPAIRMENT  OF  CONTRACTS. 

promissory  notes  and  bills  of  exchange,1  corporate 
bonds,'2  municipal  bonds,3  and  municipal  contracts  for 
the  payment  of  the  salaries  of  their  employes 4  and, 
generally,  all  legally  enforcible  contracts  to  do,  or  not 
to  do,  any  particular  act ;  and,  within  the  latter  class, 
grants  and  judgments  founded  upon  contracts,5  but  not 
judgments  founded  upon  torts.6 

There  can  be  no  impairment  of  the  obligation  of  a 
on  tract  which  has  not  been  legally  made.  Thus  a  vote 
of  the  majority  of  the  qualified  voters  of  a  county  at  an 
election  held  under  a  statute  incorporating  a  railway 
and  authorizing  an  issue  of  the  bonds  of  the  county  in 
payment  for  the  stock  of  the  railway,  if  the  qualified 
voters  so  decide  it,  does  not  constitute  a  contract  whose 
obligation  can  be  impaired  by  an  amendment  of  the  state 
Constitution,7  or  by  a  repeal  of  the  statute,8  before  the 
subscription  be  made  or  the  bonds  issued.  On  the  same 

without  distinguishing  between  those  which  are  executory  and  those  which 
are  executed,  it  must  be  construed  to  comprehend  the  latter  as  well  as  the 
former."  In  Dartmouth  College  v.  Woodward,  4  Wheat.  629,  Marshall,  C.  J., 
said,  "the  provision  of  the  Constitution  never  has  been  unde>  stood  to  embrace 
other  contracts  than  those  which  respect  property  or  some  object  of  value 
and  confer  rights  which  may  be  asserted  in  a  court  of  justice."  Daniel,  J., 
said  in  Butler  v.  Pennsylvania,  10  How.  402,  416,  "the  contracts  designed  to 
be  protected  ....  are  contracts  by  which  perfect,  certain,  definite, 
fixed,  private  rights  of  property  are  vested." 

1  Sturges  v.  Crowninshield,  4  Wheat.  122;  McMillan  v.  McNeil,  tftid209;  F. 
&  M.  Bank  v.  Smith,  ibid.  131  ;  Ogden  v.  Saunders,  12  id.  624  ;  Boyle  <>.  Zach- 
arie,  6  Pet.  635;  Suydam  v.  Broadnax,  14  id.  67  ;  Cook  v.  Moffatt,  5  How.  295 ; 
Baldwin  v.  Hale,  1  Wall.  223. 

2  Case  of  State  Tax  on  Foreign- held  Bonds,  15  Wall.  300. 

3  County  of  Moultrie  v.  R.  T.  C.  S.  Bank   92  U.  S.  631 ;  Mobile  v.  Wattson, 
116  U.  S.  289;  sed,  cf.  Merriwetherv.  Garrett,  102  id.  472. 

4  Fiskev.  J.  Police  Jury,  116  U.  S.  131. 

5  Blount  v.  Windley,  95  U.  S.  173;  Memphis  v.  U.  S.,  97  U.  S.  293;  Mobile 
v.  Wattson,  116  id.  298;  Wolff  v.  New  Orleans,  103  id.  358;  Nelson  v.  St. 
Martin's  Parish,  111  id.  716;  Rolls  County  Court  v.  U.  S.,  105  id.  733;  Lou- 
isiana v.  Pillsbury,  ibid.  278. 

6  Louisiana  v.  New  Orleans,  109  U.  S.  285. ' 

7  Aspinwall  v.  Daviess  County,  22  How.  364. 

8  Wadsworthv.  Supervisors,  102  U.  S.  534. 


INSOLVENT    LAWS.  155 

principle,  a  state  statute,  which  is  void  by  reason  of 
repugnancy  to  the  Constitution  of  the  United  States, 
cannot  constitute  a  contract  of  exemption  from  state 
taxation;  as  for  instance,  a  statute  imposing  taxation  ou 
national  banks  to  an  extent  not  permitted  by  the 
National  Banking  Act,  and,  therefore,  a  subsequent  state 
statute  imposing  on  national  banks  a  taxation  which 
though  a  heavier  burden  than  that  imposed  by  the  earlier 
statute  is  yet  within  the  limits  permitted  by  the 
National  Banking  Act,  does  not  impair  the  obligation 
of  any  contract.1  On  the  same  principle,  a  statutory 
exemption  from  state  taxation,  if  granted  in  violation 
of  the  Constitution  of  the  state,  does  not  bind  the  state 
as  a  contract.2 

63.  There  was,  for  some  time,  a  controversy  as  to  the 
effectof  the  constitutional  prohibition  upon  state  insolvent 
laws;  in  Sturges  v.  Crowninshield,3  the  action  being 
brought  in  a  federal  court  within  the  state  of  Massachu- 
setts, and  the  plaintiff  being  a  citizen  of  New  York,  and  the 
defendant  a  citizen  of  Massachusetts,  it  was  held  that  a 
discharge  under  an  insolvent  law  of  Massachusetts, 
enacted  subsequently  to  the  making  within  that  state 
of  a  contract  to  be  performed  within  the  state,  was  void 
as  an  impairment  of  the  obligation  of  that  contract.  In 
McMillan  v.  McNeil,4  the  action  being  brought  in  a 
court  of  the  state  of  Louisiana,  the  plaintiff  and  defend- 
ant both  being  citizens  of  South  Carolina,  and  the  con- 
tract having  been  made  and  stipulated  to  be  performed 
in  that  state,  it  was  held  that  a  discharge  under  an 
antecedently  enacted  law  of  Louisiana  impaired  the 
obligation  of  the  contract,  and  was  no  bar  to  its  enforce- 

1  People  v.  Commissioners  of  Taxes,  94  U.  S.  415. 

2  R.  R.  ».  Gaines,  97  U.  S.  697 ;  Trask  v.  Maguire,  18  Wall.  391 ;  Morgan  v. 
Louisiana,  93  U.  S.  217;  Shields  v.  Ohio,  95  id  319. 

3  4  Wheat.  122.  *  4  Wheat.  209. 


156  IMPAIRMENT    OF    CONTRACTS. 

raent.     In  F.  &  M.  Bank  v.  Smith,1  the  action  being 
brought  in  a  court  of  the  state  of  Pennsylvania,  and 
both   plaintiff    and  defendant  being  residents  of  that 
state,  and  the  contract  having   been  made,  and  to  be 
performed,  in  that  state,  it  was  held  that  a  discharge 
under  a  subsequently  enacted  insolvent  law  of  that  state 
was  no  bar  to  the  action.     In   Ogden  v.  Saunders,2  the 
plaintiff  being  a  citizen  of  Kentucky  and  the  defendant 
a  citizen  of  New  York,  the  contract  having  been  made 
in  New  York  to  be  performed  in  that  state,  and  the 
action   having  been   brought  in  a  federal  court  in  the 
state  of  Louisiana,  it  was  held  that  a  discharge  under 
an  antecedently  enacted  insolvent  law  of  the  state  of 
New  York  was  no  bar  to  the  action  ;  and  in  Shaw  v. 
Bobbins,3  the  same  ruling  was   made,  the  action  being 
brought  in  a  court  of  the  state  of  Ohio,  the  plaintiff 
being  a  citizen  of  Massachusetts,  the  defendant  a  citizen 
of  New  York,  and  the  discharge  set  up  being  one  that 
had  been  obtained  under  an  antecedently  enacted  insolv- 
ent  law   of    the   last-mentioned    state.     In    Boyle   v. 
Zacharie,4  Story,  J.,  said,  "  the  effect  of  the  discharge 
under  the  insolvent  act  is  of  course  at  rest,  so  far  as  it 
is  covered  by  the  antecedent  decisions  made  by  this 
court.     The  ultimate  opinion   delivered  by  Mr.  Justice 
Johnson  in  the  case  of  Ogden  v.  Saunders,5   was  con- 
curred in  and  adopted  by  the  three  judges,  who  were 
in  the  minority  upon  the  general  question  of  the  consti- 
tutionality of  state  insolvent  laws,  so  largely  discussed 
in  that  case,"  and 6  Marshall,  C.  J.,  expressed  the  same 
view  as  to  the  effect  of  the  judgment  in  Ogden  v.  Saun- 
ders. In  Sudyam  v.  Broadnax,7  the  action  having  been 
brought  in  a  court  of  the  state  of  Alabama,  the  plaintiff 

1  6  Wheat.  131.  4  6  Pet.  643.  6  at  p.  635. 

2  12  Wheat.  213.  5  12  Wheat.  213,  358.          7  14  Pet.  67. 

3  12  Wheat.  369. 


INSOLVENT    LAWS.  157 

being  a  citizen  of  New  York,  it  was  held  that  a  judicial 
declaration  of  the  insolvency  of  a  decedent's  estate  under 
the  terms  of  an  antecedently  enacted  statute  of  Alabama 
was  powerless  to  discharge  a  contract  made  by  the  dece- 
dent in  his  lifetime  in  New  York  and  stipulated  to  be 
performed  in  that  state.  In  Cook  v.  Moffat,1  the  action 
being  brought  in  a  federal  court  in  the  state  of  Mary- 
land, the  plaintiff  being  a  citizen  of  New  York  and  the 
defendant  a  citizen  of  Maryland, and  the  contract  having 
been  made  in  New  York  to  be  performed  in  that  state,  it 
was  held  that  a  discharge  under  an  antecedently  enacted 
statute  of  Maryland  was  no  bar  to  the  action.  In  Bald- 
win v.  Hale,2  the  action  having  been  brought  in  a  federal 
court  in  the  state  of  Massachusetts,  the  plaintiff  being  a 
citizen  of  Vermont  and  the  defendant  a  citizen  of  Massa- 
chusetts, and  the  contract  having  been  made  in  Massachu- 
setts, to  be  performed  in  that  state,  it  was  held  that  a 
discharge  under  an  antecedently  enacted  statute  of  Mas- 
sachusetts did  not  bar  the  action.  The  result  of  the 
cases  is,  that  a  discharge  under  the  insolvent  laws  of  a 
state  is  not  a  bar  to  an  action  on  a  contract  for  the  pay- 
ment of  money,  first :  when  the  law  under  which  the 
discharge  has  been  granted  has  been  enacted  subse- 
quently to  the  making  of  the  contract;3  second:  when, 
although  the  discharge  has  been  granted  under  a  law 
enacted  antecedently  to  the  making  of  the  contract,  the 
contract  was  made  in  another  state  to  be  performed  in 
that  other  state;4  third:  when,  although  the  discharge 
has  been  granted  under  a  law  enacted  antecedently  to 
the  making  of  the  contract,  and  although  the  contract 
was  made  and  to  be  performed  in  the  state  in  which 
the  discharge  has  been  granted,  the  action  upon 

1  5  How.  295.  2  1  Wall.  223. 

3  Sturges  v.  Crowninshield,  4  Wheat.  122 ;  F.  &  M.  Bank  v.  Smith,  6  id.  131. 

4  McMillan  v.  McNeil,  4  Wheat.  209;  Cooky.  Moffat,  5  How.  295. 


158  IMPAIRMENT    OF   CONTRACTS. 

the  contract  is  brought  in  another  state,  by  a  party 
who  is  not  a  citizen  of  the  state  granting  the  dis- 
charge, and  who  has  not  made  himself  a  party  to 
the  proceedings  in  insolvency  j1  and  fourth,  when, 
although  the  discharge  has  been  granted  under  a  Jaw 
enacted  antecedently  to  the  making  of  the  contract,  and 
although  the  contract  was  made  and  to  be  performed  in 
the  state  in  which  the  discharge  has  been  granted,  the 
action  upon  the  contract  is  brought  in  the  state  grant- 
ing the  discharge  by  one  who  is  not  a  citizen  of  that 
slate,  and  who  has  not  made  himself  a  party  to  the  pro- 
ceedings in  insolvency.2  The  questions,  as  yet  not  con- 
cluded by  the  authority  of  the  court,  are  as  to  the 
effect  of  the  discharge  as  regards  creditors,  who,  though 
not  citizens  of  the  state  granting  the  discharge,  volun- 
tarily become  parties  to  the  insolvency  proceedings,  or, 
who,  being  citizens  of  the  state  granting  the  discharge, 
and  being  duly  notified  of  the  insolvency  proceedings, 
neglect  or  refuse  to  become  parties  thereto. 

64.  Contracts  for  the  payment  of  money  being 
within  the  protection  of  the  constitutional  prohibition 
of  the  impairment  of  their  obligation,  judgments  upon 
such  contracts  are  equally  entitled  to  protection.3  There- 
fore, a  judgment  against  a  municipal  corporation 
founded  upon  a  breach  of  contract  is  not  affected  by  a 
subsequent  legislative  abolition  of  the  municipality's 
power  to  levy  taxes  for  the  payment  of  its  debts.4  But 
judgments  founded  upon  torts  are  not  contracts  whose 
obligation  will  be  protected  against  subsequent  legisla- 
tion ;  as,  for  instance,  against  a  statutory  diminution  of 

1  Ogden?>.  Faunders,  12  Wheat.  213;  Shaw  v.  Robbins,  ibid..  369,  note. 

2  Baldwin  v.  Hale,  1  Wall.  223. 

3  Blount  v  Windsley,  95  U.  S  173. 

4  Memphis  v.  U.  S.,  97  U.S.  293;  Mobile  v.  Wattson,  116  id  298;  Wolff 
v.  New  Orleans,  103  id..  358;  Nelson  v.  St.. Martin's  Parish,  111  id.  716;  Rolls 
County  Court  v.  United  States,  105  id.  733;  Louisiana  v.  Pillsbury,  ibid.  278. 


MUNICIPAL   CONTRACTS.  159 

the  taxing  power  of  the  municipality  against  which  the 
judgment  in  tort  has  been  obtained.1 

65.  A  state  cannot  take  away  from  a  municipality  ex- 
isting powers  of  taxation  so  as  to  deprive  of  his  com- 
pensation an  officer  who  has  served  his  term.2  County 
bonds  issued  by  public  officers  under  authority  of  law 
either  upon  the  subscription,  or  upon  the  agreement  to 
subscribe  to  the  stock  of  a  railway  constitute  a  contract 
between  the  county  and  the  bondholders,  whose  obligation 
cannot  be  impaired  by  a  subsequent  legislative  repeal 
of  the  statute  authorizing  the  subscription,  or  by  a  sub- 
sequent amendment  to  the  state  Constitution  prohibiting 
such  a  subscription.3  But  where  public  officers  are  by 
statute  authorized  to  issue  bonds  in  aid  of  railway  con- 
struction only  upon  the  fulfillment  of  a  condition  pre- 
cedent which  is  not  fulfilled  before  the  adoption  of  an 
amended  state  Constitution  prohibiting  the  issue  of  such 
bonds  there  is  no  contract  whose  obligation  is  impaired 
by  the  adoption  of  the  state  Constitution.1  On  the  same 
principle  a  statutory  authorization  of  borrowing  of 
money  by  a  municipality  is  not  a  contract  between  the 
state  and  the  municipal  creditors  whose  obligation  can 
be  impaired  by  the  subsequent  exercise  by  the  state  of 
the  power  of  modifying  the  rate  of  taxation  or  of  ex- 
empting certain  property  from  taxation,5  but  a  state 
cannot  dissolve  an  existing  municipal  corporation 
having  a  bonded  debt,  for  whose  payment  powers  of 
taxation  have  been  granted  and  specifically  pledged,  for 
that  dissolution  interferes  with  the  exercise  of  such 
power  of  taxation.6  Nor  can  a  state  withdraw  or 

1  Louisiana  v.  New  Orleans,  109  U.  S.  285. 

2  Fiske  v.  J.  Police  Jury,  116  U.  S.  131. 

3  County  of  Moultrie  v.  K.  T.  C.  S.  Bank,  92  U.  S.  361. 
*  D.  &  J.  R  K.  v.  Falconer,  103  U.  S.  821. 

5  Oilman  v.  Sheboygan,  2  Bl.  510. 

6  Mobile  v.  Wattson,  116  U.  S.  289 ;  sed  cf.  Merriweather  v.  Garrett,  102 
id.  472. 


160  IMPAIRMENT    OF    CONTRACTS. 

restrict  the  taxing  power  of  a  municipality  so  as  to 
impair  the  obligation  of  contracts  which  have  been 
made  on  the  pledge,  express  or  implied,  that  that  tax- 
ing power  shall  be  exercised  for  their  fulfillment.1  A 
statutory  prohibition  of  the  issuing  by  the  courts  of  the 
state  of  a  mandamus  to  compel  the  levying  of  a  tax  for 
the  payment  of  the  interest  upon,  or  the  principal  of, 
municipal  bonds,  whose  issue  had  been  legally  author- 
ized, impairs  the  contract  between  the  municipality  and 
the  bondholder.2  In  general,  the  statutory  authorization 
of  the  contracting  by  a  municipality  of  an  extraordi- 
nary debt  by  the  issue  of  negotiable  securities  therefor 
conclusively  implies  a  power  in  the  municipality  to 
levy  taxes  sufficient  to  pay  the  accruing  interest  upon, 
and  the  matured  principal  of,  the  debt  unless  the  statute 
conferring  the  authority,  or  the  Constitution  of  the 
state,  or  some  general  law  in  force  at  the  time,  clearly 
manifests  a  contrary  legislative  intent.3 

66.  It  has  never  been  doubted  that  contracts  between 
individuals  were  protected  by  the  constitutional  pro- 
vision, but  it  was  formerly  a  matter  of  grave  doubt 
whether  or  not  contracts,  to  which  a  state  was  a  party, 
were  likewise  entitled  to  protection.  The  history  of 
the  Constitution  shows  clearly,  that  the  mischiefs,  which 
the  framers  of  the  Constitution  intended  to  remedy  by 
this  prohibition,  were,  primarily,  those  caused  by  state 
legislation  enabling  debtors  to  discharge  their  debts 
otherwise  than  as  stipulated  in  their  contracts,  and  that 
the  prohibition  was  not  intended  by  its  originators  to 
interfere  with  the  exercise  of  state  sovereignty  in  cases 
of  other  than  private  contracts.  This  restriction  on 

1  Wolff  v.  New  Orleans,  103  U.  S.  358;  Nelson  v.  St.  Martin's  Parish,  111 
id.  716  ;  Rolls  County  Court  v.  United  States,  105  id.  733 ;  Memphis  v.  United 
States,  97  id.  293  ;  Siebert  v.  Lewis,  122  id.  284. 

2  Louisiana  v.  Pillsbury,  105  U.  S.  278. 

3  Rolls  County  Court  v.  United  States,  105  U.  S.  733. 


HISTORY   OF   THE   CLAUSE.  161 

the  power  of  the  states  is  not  to  be  found  in  either  Mr. 
Pinckney's,  Mr.  Hamilton's,  or  Mr.  Patterson's  projets 
as  presented  to  the  convention,  nor  is  it  implied  in  Mr. 
Madison's  resolutions,  nor  does  it  appear  in  the  draft 
reported  by  the  Committee  of  Five  on  6  August,  1787; 
but  when  article  XIII  of  the  report  of  that  committee 
was  under  consideration  on  US  August,  Mr.  King 
"moved  to  add  in  the  words  used  in  the  ordinance  of 
Congress  establishing  new  states,  a  prohibition  on  the 
states  to  interfere  in  private  contracts,"  but,  on  motion 
of  Mr.  Eutledge,  as  a  substitute  fur  Mr.  King's  propo- 
sition, there  was  adopted  a  prohibition  of  state  bills  of 
attainder  and  ex  post  facto  laws.1  The  journal  of  the 
convention  mentions  Mr.  Rutledge's  motion,  but  omits 
all  reference  to  Mr.  King's  proposition.  Mr.  Madison 
reports  Mr.  King's  resolution,  with  the  mention  of  dec- 
larations of  opinion  in  favour  of  it  by  Messrs.  Sherman, 
Wilson,  and  Madison,  and  objections  to  it  by  Messrs. 
Gouverneur  Morris,  and  Mason,  on  the  ground  that 
state  laws,  limiting  the  times  within  which  actions 
might  be  brought,  necessarily  interfered  with  contracts, 
and  ought  not  to  be  prohibited,  and  that  there  might 
be  other  cases  in  which  such  interferences  would  be 
proper.  There  does  not  seem  to  be  any  record  of  any 
other  discussion  of  this  subject  in  the  convention. 
The  Committee  of  Revision  reported  on  12  September, 
1787,  to  the  convention  their  revised  draft  of  the 
Constitution,  in  which  Art.  I,  Sec.  10,  declares  "no 
state  shall  .  .  .  pass  any  ...  laws  altering  or  im- 
pairing the  obligation  of  contracts."  In  convention 
on  Friday,  14  September,  1787,  the  clause  was 
finally  amended  and  put  into  the  form  in  which  it  ap- 
pears in  the  Constitution,  there  being,  so  far  as  is  known, 
no  debate  on  the  subject,  save  by  Mr.  Gerry,  who 

1  Madison  Papers,  5  Elliot's  Debates  485. 


102          IMPAIKMENT  OF  CONTRACTS. 

"  entered  into  observations  inculcating  the  importance 
of  the  public  faith  and  the  propriety  of  the  restraint 
put  on  the  states  from  impairing  the  obligation  of  con- 
tracts," and  unavailingly  endeavoured  to  obtain  the  in- 
sertion in  the  Constitution  of  a  similar  restraint  upon  con- 
gressional action.1  Mr.  Bancroft  states,2  with  reference 
to  the  Committee  of  Revision's  report,  that  "  Gouverneur 
Morris  retained  the  clause  forbidding  ex  post  facto  laws 
— and  resolute  not  'to  countenance  the  issue  of  paper 
money  and  the  consequent  violation  of  contracts/"3  he 
of  himself  added  the  words,  "no  state  shall  pass  laws 
altering  or  impairing  the  obligation  of  contracts."4 
Mr.  Bancroft  also  quotes  from  the  official  report  to  the 
Governor  of  Connecticut  made  by  Roger  Sherman  and 
Oliver  Ellsworth,  the  deputies  from  that  state  to  the 
Federal  Convention,  wherein  they  say,  "  the  restraint 
on  the  legislatures  of  the  several  states  respecting  emit- 
ting bills  of  credit,  making  anything  but  money  a 
tender  in  payment  of  debts,  or  impairing  the  obligation 
of  contracts  by  ex  post  facto  laws,  was  thought  necessary 
as  a  security  to  commerce,  in  which  the  interest  of 
foreigners,  as  well  as  of  the  citizens  of  different 

O  ' 

states  may  be  affected."  The  clause  does  not  appear 
to  have  been  made  a  subject  of  discussion  in  any  of  the 
state  conventions  called  to  ratify  the  Constitution. 
Mr.  Hamilton,  when  Secretary  of  the  Treasury,  said 
in  his  memorandum  of  28  May,  1790,  to  President 
Washington  on  the  subject  of  the  resolutions  of  Con- 
gress with  regard  to  the  arrears  of  pay  due  to  certain 
soldiers  of  the  Revolution,5  "the  Constitution  of  the 
United  States  interdicts  the  states  individually  from 


1  Madison  Papers,  5  Elliot's  Debates  546. 

2  2  Hist,  of  the  Constitution  214.  3  G.  Morris  by  Sparks,  III,  323. 
4  Gilpiii  1552,  1581. 

6  Works  of  Hamilton,  Lodge's  Edition,  Vol.  II,  p.  147. 


HISTORY    OF    THE    CLAUSE.  163 

passing  any  law  impairing  the  obligation  of  contracts. 
Tiiis,  to  the  more  enlightened  part  of  the  community, 
was  not  one  of  the  least  recommendations  of  that  Con- 
stitution. The  too  frequent  intermeddlings  of  the 
state  legislatures,  in  relation  to  private  contracts  were 
extensively  felt,  and  seriously  lamented ;  and  a  Consti- 
tution which  promised  a  prevention,  was,  by  those  who 
felt  and  thought  in  that  manner,  eagerly  embraced." — 
Mr.  Madison  said  in  the  Federalist,1  "Bills  of  at- 
tainder, ex  post  facto  laws,  and  laws  impairing  the  obli- 
gation of  contracts,  are  contrary  to  the  first  principles  of 
tlie  social  compact,  and  to  every  principle  of  sound  legis- 
lation. The  two  former  are  expressly  prohibited  by  the 
declarations  prefixed  to  some  of  the  state  Constitutions, 
and  all  of  them  are  prohibited  by  the  spirit  and  scope 
of  these  fundamental  charters.  Our  own  experience 
has  taught  us,  nevertheless,  that  additional  fences  against 
these  dangers  ought  not  be  omitted.  Very  properly, 
therefore,  have  the  convention  added  this  constitutional 
bulwark  in  favour  of  personal  security  and  private 
rights ;  and  I  am  much  deceived,  if  they  have  not,  in  so 
doing,  as  faithfully  consulted  the  genuine  sentiments 
as  the  undoubted  interests  of  their  constituents.  The 
sober  people  of  America  are  weary  of  the  fluctuating 
policy  which  has  directed  the  public  councils.  They 
have  seen  with  regret  and  with  indignation,  that  sudden 
changes,  and  legislative  interferences,  in  cases  affect- 
ing personal  rights,  become  jobs  in  the  hands  of  enter- 
prising and  influential  speculators,  and  snares  to  the 
more  industrious  and  less  informed  part  of  the  com- 
munity. They  have  seen,  too,  that  one  legislative  inter- 
ference is  but  the  first  link  of  a  long  chain  of  repeti- 
tions ;  every  subsequent  interference  being  naturally 
produced  by  the  effects  of  the  preceding.  They  very 

1  No.  XLIV,  Lodge's  Edition. 


164          IMPAIRMENT  OF  CONTRACTS. 

rightly  infer,  therefore,  that  some  thorough  reform  is 
wanting,  which  will  banish  speculations  on  public 
measures,  inspire  "a  general  prudence  and  industry, 
and  give  a  regular  course  to  the  business  of  society.  "  In 
Sturges  v.  Crowninshield,1  Marshall,  C.  J.,  said  "the 
fair,  and,  we  think,  the  necessary  construction  of  the 
sentence  requires  that  we  should  give  these  words  their 
full  and  obvious  meaning.  A  general  dissatisfaction 
with  that  lax  system  of  legislation  which  followed  the 
war  of  our  revolution  undoubtedly  directed  the  mind  of 
the  convention  to  this  subject.  It  is  probable  that  laws, 
such  as  those  which  have  been  stated  in  argument,  pro- 
duced the  loudest  complaints,  were  most  immediately 
felt.  The  attention  of  the  convention,  therefore,  was 
particularly  directed  to  paper  money,  and  to  acts  which 
enabled  the  debtor  to  discharge  his  debt  otherwise  than 
as  stipulated  in  the  contract.  Had  nothing  more  been 
intended,  nothing  would  have  been  expressed.  But,  in 
the  opinion  of  the  convention,  much  more  remained  to 
be  done.  The  same  mischief  might  be  effected  by  other 
means.  To  restore  public  confidence  completely,  it  was 
necessary  not  only  to  prohibit  the  use  of  particular 
means  by  which  it  might  be  effected,  but  to  prohibit  the 
use  of  any  means  by  which  the  same  mischief  might  be 
produced.  The  convention  appears  to  have  intended  to 
establish  a  great  principle,  that  contracts  should  be 
inviolable.  The  Constitution,  therefore,  declares  that  no 
state  shall  pass  '  any  law  impairing  the  obligation  of 
contracts.' ' 

67.  In  1810  the  judgment  in  Fletcher  v.  Peck,2  estab- 
lished the  doctrine  that  contracts,  to  which  a  state  is  a 
party,  are  within  the  protection  of  the  constitutional 
prohibition.  The  facts  in  that  case  were  these:  in 
1795,  the  state  of  Georgia  enacted  a  statute  authorizing 

1  4  Wheat.  205.  8  6  Cr.  87. 


CONTRACTS   OF   A    STATE.  165 

the  issue  of  a  patent  to  "  the  Georgia  Co."  for  a  tract 
of  laud  iu  that  state,  and  on  13  January,  1795,  the 
patent  was  issued.  By  sundry  mesne  conveyances 
before  1798  title  in  fee  to  a  part  of  the  tract  vested  in 
Pock,  wlio  had  purchased  for  value  and  without  notice 
of  any  rn  itter  which  could  invalidate  the  title  of  the 
state's  grantees.  In  17^6  the  state  of  Georgia  enacted 
a  statute  repealing  the  Act  of  1795  and  annulling  the 
patent  to  the  Georgia  Co.  On  14  May,  1803,  Peck 
cjnveyei  to  Fletcher,  covenanting,  inter  alia,  that  his 
title  had  bean  "  in  no  way  constitutionally  or  legally 
impaired  by  virtue  of  any  subsequent  act  of  any  sub- 
sequent legislature  of  the  state  of  Georgia."  Fletcher 
brought  covenant  sur  deed  against  Peck  in  the  Circuit 
Court,  declaring,  inter  alia,  that  the  statute  of  1796  was 
enacted  by  reason  of  fraud  practiced  in  securing  the 
enactment  of  the  statute  of  1795  and  was  an  impairment 
of  Peck's  title.  Peck  pleaded  that  he  was  a  purchaser 
for  value  and  without  notice,  etc.  Fletcher  demurred, 
and  the  court  entered  judgment  thereon  for  Peck,  which 
judgment  was  affirmed  in  the  Supreme  Court  on  a  writ 
of  error,  the  ground  of  decision  being,  that  the  constitu- 
tional prohibition  comprehends  contracts  executed, 
including  grants,  as  well  as  contracts  executory,  and 
that  the  states  being  prohibited  from  passing  "  any  bill 
of  attainder,  ex  post  facto  law,  or  law  impairing  the  obli- 
gation of  contracts,"  and  the  prohibition  of  bills  of 
attainder  and  ex  post  facto  laws  being  a  restraint  upon 
governmental  action,  there  is  not  to  be  implied  "  in 
words  which  import  a  general  prohibition  to  impair  the 
obligation  of  contracts,  an  exception  in  favour  of  the 
right  to  impair  the  obligation  of  those  contracts  into 
which  the  state  may  enter."  It  has,  therefore,  since 
1810,  been  settled  that  the  term  "  contract "  includes 
not  only  contracts  between  individuals,  private  and  cor- 


166          IMPAIRMENT  OF  CONTRACTS. 

porate,  but  also  contracts,  executed  and  executory, 
between  the  state  and  individuals,  private  and  corporate. 
Following  in  the  line  of  Fletcher  v.  Peck,  it  has  been 
held  that,  a  grant  of  land  by  a  state  to  a  railway  cor- 
poration is  a  contract  whose  obligation  is  impaired  by  a 
subsequent  act  resuming  the  land,1  that  a  state  can- 
not deprive  of  his  right  to  recover  mesne  profits  from  a 
disseisor  one  whose  title  vested  under  a  compact 
between  that  state  and  another  state,  and  who  under  that 
compact  was  entitled  to  recover  meme  profits,2  and  that 
a  state  cannot,  by  statute,  divest  religious  corporations 
of  their  title  to  land  acquired  under  colonial  laws  ante- 
cedently to  the  revolution.3 

68.  When  in  1812  the  case  of  New  Jersey  v.  Wil- 
son,4 came  before  the  Supreme  Court,  the  doctrine  of 
Fletcher  v.  Peck  necessarily  required  the  court  to  hold 
that  the  state  was  bound  by  the  express  contract  con- 
tained in  a  statute  which  authorized  the  purchase  of 
certain  land  for  the  remnant  of  the  tribe  of  Delaware 
Indians,  and  which,  in  terms,  declared  that  the  land  so 
purchased  "shall  not  hereafter  be  subject  to  any  tax," 
and  that  that  contract  forbade  the  subsequent  taxation 
of  such  lands,  after  their  sale  to  other  parties  with  the 
state's  consent.  The  legal  inviolability  of  a  state's  con- 
tract to  exempt  lands  from  state  taxation  having  been 
thus  established,  it  followed  that  a  similar  contract  with 
regard  to  corporate  franchises  or  assets  was  entitled  to 
the  like  protection,  and  that  contracts  of  exemption  from 
state  taxation,  contained  in  corporate  charters,  or  stipu- 
lated by  subsequent  agreement,  if  made  in  express  terms 
and  supported  by  an  adequate  consideration,  constitute 
contracts  so  binding  upon  the  state  that  their  obligation 
cannot  be  impaired  by  a  subsequent  repeal  of  the  charter, 

1  Davis  v.  Gray,  16  Wall.  203.  3  Terrett  v.  Taylor,  9  Cr.  43. 

2  Green  v.  Biddle,  8  Wheat.  1.  4  7  Cr.  K4. 


EXEMPTION    FROM    TAX.  1G7 

or  by  an  imposition  of  a  rate  of  taxation  inconsistent 
with  the  state's  contract.1  Thus,  the  line  and  rolling 
stock  of  a  railway  cannot  be  taxed  when  its  charter 
exempts  from  taxation  its  "property  "  and  "shares;"1 
nor  can  the  shares  of  the  capital  stock  of  a  corporation 
be  taxed  in  the  hands  of  the  shareholders,  when  the 
charter  requires  the  corporation  to  pay  to  the  state  a 
tax  on  each  share  of  the  stock  "  in  lieu  of  all  other 
taxes ;" 3  nor  can  the  gross  receipts  of  a  corporation  be 
taxed  when  its  charter  exempts  the  corporation  from 
taxation;4  nor  can  a  corporation  be  taxed  in  excess  of 
the  limits  specifically  designated  in  the  charter,5  or 
other  contract.6  Nor  ca.n  a  municipal  corporation  in 
the  exercise  of  authority  delegated  to  it  by  statute  assess 
a  street  railway  for  a  new  paving  of  a  street,  when  the 
railway  has  contracted  with  the  municipality  to  keep 
the  street  in  repair,  for  the  acceptance  of  that  contract 
limits  by  necessary  implication  the  obligation  of  the 
railway  to  repairs,  and  relieves  it  from  liability  for  bet- 
terments ; 7  nor  can  property  held  by  a  charitable  cor- 
poration as  an  investment  be  taxed,  when  its  charter 
exempts  from  taxation  all  property  of  whatever  kind  or 
description  belonging  to  or  owned  by  the  corporation.8 
An  adequate  consideration  for  a  charter  exemption  from 
taxation  is  to  be  found  in  the  exercise  by  the  corpora- 
tion of  the  powers  conferred  by  the  charter,  or,  in  the 

1  Jefferson  Branch  Bank  v.  Skelly,  1  Black  436 ;  W.  R.  R.  r.  Reid,  18  Wall. 
264;  R.  &  G.  R.  R.  v.  Same,  ibid.   269;  Chicago  v.  Sheldon  9    Wall.  50; 
Humphrey  v.  Pegues,  16  id.  244 ;  P.  R.  R.  v.  Magwire,  20  id.  36  ;  New  Jersey 
r.  Yard,  95   U.  S.   104;  University  v.  People,  99   id.   309;  Asylum  r.   New 
Orleans,  105  id.  362. 

2  W.  R.  R.  v.  Reid,  13  Wall   264. 

3  Farrington  v.  Tennessee,  95  U.  S.  679. 
P.  R.  R.  v.  Magwire,  20  Wall.  36. 

R.  &  G.  R.  R.  v.  Reid,  13  Wall.  269. 

New  Jersey  v.  Yard,  95  U.  S.  104. 

Chicago  v.  Sheldon,  9  Wall.  50. 

University  v.  People,  99  U.  S.  309 ;  Asylum  v.  New  Orleans,  105  id.  362. 


108          IMPAIRMENT  OF  CONTRACTS. 

case  of  corporations  for  charitable  purposes,  in  the  con- 
tribution of  funds  to  the  corporation  for  the  accomplish- 
ment of  its  benevolent  purpose.1  So  also  the  building 
by  a  railway  corporation  of  its  line,  under  the  terms  of 
a  statute  amendatory  of  its  charter  and  granting  in 
express  terms  an  exemption  from  taxation,  constitutes  a 
consideration  for  the  exemption,  though  the  original 
charter  granted  a  power  to  the  corporation,  which  it  did 
not  exercise,  to  build  the  line.2  Statutory  exemptions 
from  state  taxation  not  incorporated  in  charters  and 
unsupported  by  a  consideration  moving  to  the  state,  or 
from  the  exempted  corporation,  do  not  constitute  irre- 
pealable  contracts  of  exemption,  but  are  subject  to  modi- 
fication or  repeal  in  the  exercise  of  legislative  discretion  ; 
as,  for  instance,  bounty  laws  offering  such  an  exemption 
as  an  inducement  for  the  organization  of  corporations  to 
develop  a  particular  industry,3  or  voluntary  grants  of 
exemption  of  the  real  property  of  a  charity  from  taxa- 
tion.4 

If  the  Constitution  of  a  state  prohibits  legislative 
grants  of  exemption  from  state  taxation,  such  a  grant, 
though  accepted  in  good  faith  by  the  exempted  corpo- 
ration, cannot  constitute  a  contract  whose  obligation  is 
impaired  by  a  subsequent  imposition  of  taxation.5  Such 
a  constitutional  prohibition  operates  to  extinguish  an 
exemption  made  by  contract  in  the  case  of  a  railway, 
which  having  been  exempted  before  the  adoption  of  the 
constitutional  prohibition,  had  been  after  the  adoption 
thereof  sold  under  foreclosure  to  reorganize  the  corpo- 
ration.6 On  the  same  principle,  a  statutory  consoli- 

Uuiversity  v.  People,  99  U.  S.  309  ;  Asylum  v.  New  Orleans,  105  id.  362. 

Humphrey  v.  Pegues,  16  Wall.  244. 

Salt  Co.  v.  East  Saginaw,  13  Wall.  273. 

Christ  Church  v.  Philadelphia,  24  How.  300. 

Railroad  Co.  v.  Gaines,  97  U.  S.  697. 

Trask  v.  Maguire,  18  Wall.  391 ;  Morgan  v.  Louisiana,  93  U.  S.  217. 


RESERVATIONS    IN    CHARTERS.  169 

dation  of  two  railways  works  the  dissolution  of  the 
original  corporation,  and  subjects  the  consolidated  cor- 
poration to  the  operation  of  an  amended  state  Consti- 
tution, which  took  effect  subsequently  to  the  incorpo- 
ration of  the  original  corporations,  but  prior  to  their 
consolidation  ;  and,  therefore,  the  state  legislature  may, 
without  impairment  of  the  obligation  of  the  contract, 
prescribe  rates  for  the  transportation  of  passengers  by 
the  consolidated  corporation,  though  one  of  the  original 
corporations  was  by  charter  protected  against  such 
legislative  regulation.1  General  statutory  prohibitions 
of  the  exemption  of  corporations  from  state  taxation  are 
not  binding  on  subsequent  legislatures,2  unless  referred 
to  in,  and  incorporated  with,  subsequently  granted 
charters.3  In  the  case  of  a  statutory  consolidation 
accepted  by  two  railways,  each  of  whose  charters  con- 
tained a  limited  exemption  from  taxation,  a  reservation 
by  a  general  statute  before  the  enactment  of  the  con- 
solidating act  and  incorporated  therewith,  operates  to 
extinguish  the  limited  exemption  contained  in  the 
original  charters.4  Of  course,  if  the  state  in  the  charter 
reserves  the  right  to  alter,  modify,  or  repeal  that 
charter,  that  reservation  authorizes  any  such  amend- 
ment of  the  charter  granted  as  will  not  defeat  nor 
substantially  impair  the  obligation  of  the  grant  or  any 
rights  that  may  be  vested  thereunder.5  The  first  sug- 
gestion of  any  such  reservation  is  to  be  found  in  the 
judgment  of  Parsons,  C.  J.,  in  Wales  v.  Stetson,6  which 
is  cited  by  Miller.  J.,  in  Greenwood  v.  Freight  Co.7 
A  provision  in  a  charter,  or  a  general  statute  incorpo- 

1  Shields  v.  Ohio,  95  U.  S.  319. 

8  New  Jersey  v.  Yard,  95  U.  S.  104. 

3  Greenwood  v.  Freight  Co.,  105  U.  S.  13 ;  Tomlinsonv.  Jessup,  15  Wall  454. 

*  A.  &  G.  R.  R.  v.  Georgia,  98  U.  8.  357. 

6  Close  r.  Glemvood  Cemetery,  107  U.  S.  4fi6 

6  2  Mass.  146.  '  105  U.  S.  13,  19. 


170          IMPAIRMENT  OF  CONTRACTS. 

rated  therewith,  that  that  charter  shall  not  be  alterable 
in  any  other  manner  than  by  an  act  of  the  legislature, 
operates  as  a  reserved  power  authorizing  a  statutory 
amendment  of  the  charter.1  Express  contracts  of  ex- 
emption from  state  taxation  are  to  be  strictly  construed. 
Thus  a  charter  of  a  railway  imposing  an  animal 
tax  assessed  on  the  cost  of  the  line,  reserving  the  right 
to  impose  taxes  on  the  gross  earnings  of  the  corpora- 
tion and  stipulating  that  the  above  several  taxes 
shall  be  in  lieu  of  other  taxation,  is  not  a  contract  whose 
obligation  is  impaired  by  a  subsequent  statute  taxing 
lands  owned  by  the  railway  and  mortgaged  as  security 
for  its  bonded  debt,  but  not  used  in  the  construction  or 
operation  of  its  line.2  So  a  provision  in  the  charter  of 
a  ferry  company  that  it  "  shall  be  subject  to  the  same 
taxes  as  are  now  or  hereafter  may  be  imposed  on  other 
ferries,"  does  riot  exempt  the  corporation  from  liability 
to  pay  an  annual  license  fee  on  each  of  its  boats,  under 
the  requirements  of  a  municipal  ordinance  enacted  under 
due  legislative  authority.3  So  the  charter  of  a  street 
railway  requiring  the  payment  to  the  municipality  of 
such  annual  license  "as  is  now  paid  by  other  railway 
companies,"  is  to  be  construed  to  mean  that  the  com- 
pany shall  not  at  any  future  time  be  required  to  pay  a 
greater  license  than  that  then  required  to  be  paid  by 
other  companies.4  A  charter  granting  to  a  corporation 
all  the  rights,  powers,  and  privileges  "  granted  by  the 
charter"  of  another  corporation,  confers  an  exemption 
from  state  taxation  contained,  not  in  the  charter  to  which 
reference  is  made,  but  in  a  statute  amendatory  thereof, 
and  the  exemption  thus  conferred  constitutes  a  contract 

1  Pennsylvania  College  Cases,  13  Wall.  190  ;  Holyoke  Company  v.  Lyon,  15 
id.  500  ;  Miller  v.  State, ibid.  478. 

2  Tucker  v.  Ferguson,  22  Wall.  527. 

3  W.  F.  Co.  v.  East  St.  Louis,  107  U.  S.  365. 
*  U.  P.  Ry.  v.  Philadelphia,  101  U.  S.  528. 


EXPRESSED    CHARTER    RIGHTS.  171 

whose  obligation  cannot  be  impaired  by  a  subsequent 
repeal  of  the  statute  conferring  by  reference  the  right 
of  exemption.1  So  a  state  may  make  a  contract  con- 
ferring the  exclusive  right  of  building  a  toll  bridge  by 
reference  to  a  previously  enacted  statute.2  On  the  other 
hand,  the  incorporation  of  a  railway  by  a  charter  in- 
vesting the  company  "  for  the  purpose  of  making  and 
using  the  said  road  with  all  powers,  rights,  and  privi- 
leges, and  subject  to  the  disabilities  and  restrictions  that 
have  been  conferred  and  imposed  upon"  another  rail- 
way con  pany,  whose  charter  contained  an  express  ex- 
emption from  taxation,  does  not  confer  that  exemption 
on  the  former  company.3  So  in  the  case  of  the  merger 
of  a  corporation  having  an  exemption  from  state 
taxation  for  a  limited  period  with  another  corporation 
having  an  unlimited  exemption,  the  consolidating  statute 
not  granting  any  exemption,  the  consolidated  corpo- 
ration cannot  claim  as  to  property  acquired  from  the 
first  mentioned  corporation  any  exemption  beyond  the 
limits  contained  in  the  charter  of  that  corporation.4 

69.  Express  stipulations  in  a  charter  as  to  the  privi- 
leges thereby  conferred  on  the  corporation  are  also  within 
the  protection  of  the  constitutional  prohibition ;  thus,  a 
provision  in  the  charter  of  a  toll  bridge  company  that  it 
shall  not  be  lawful  for  any  person  to  erect  another 
bridge  within  a  specified  distance  of  the  bridge  thereby 
authorized,  constitutes  a  contract  binding  the  state  not 
to  authorize  the  construction  of  such  other  bridge,5  but 
the  authorization  by  the  state  of  the  construction  of  a 
railway  viaduct  does  not  impair  the  obligation  of  such 


1  Humphrey  v.  Pegues,  16  Wall.  244. 

2  Binghamton  Bridge,  3  Wall.  51. 


8  R.  R.  v.  Gaines,  97  U.  S.  697. 

4  Tomlinson  v.  Branch,  15  Wall.  460. 

5  Binghamton  Bridge,  3  Wall.  51 ;    Bridge  Proprietors  v.  Hoboken,  1  id. 
116. 


172          IMPAIRMENT  OF  CONTRACTS. 

a  contract.1  So,  also,  a  statute  forbidding  the  transfer 
by  any  bank  of  any  note,  bill  receivable,  or  other  evi- 
dence of  debt,  impairs  the  obligation  of  a  contract 
created  by  the  grant  in  a  charter  of  a  bank  of  power  to 
receive,  hold,  and  grant  chattels  and  effects  of  what 
kind  soever,  and  to  receive  deposits  and  discount 
notes.2  On  the  same  principle  a  state  is  bound  by  its 
express  contracts,  not  including  appointments  to  public 
office,  between  the  state  and  an  individual  for  the  per- 
formance of  special  services  for  a  stipulated  compensa- 
tion,3 by  its  grants  of  franchises  and  exclusive  privileges, 
such  as  the  privilege  of  supplying  a  municipality  with 
water,4  or  gas,5  by  its  contracts  conceding  peculiar  privi- 
leges to  state  obligations,  as  for  instance,  stipulating  that 
coupons  of  state  bonds  should  be  receivable  for  taxes,6  or 
that  the  circulating  notes  of  a  bank  should  be  receivable 
in  payment  for  taxes,7  or  of  other  debts  due  to  the  state,8 
by  contracts  made  by  a  political  subdivision  of  the  state 
for  the  payment  of  the  principal  of,  or  interest  upon, 
the  public  debt  of  that  subdivision,9  and  by  the  con- 
tracts of  a  corporation,  whose  sole  shareholder  is  the 
state,  for  the  payment  of  the  corporate  debt.10  Contracts 
between  two  or  more  states,  under  which  private  rights 
have  vested,11  are  so  far  protected  that  neither  state  can 

1  Bridge  Proprietors  v.  Hoboken,  1  Wall.  116. 

2  Planters  Bank  v.  Sharp,  6  How.  301. 

3  Hall  v.  Wisconsin,  103  U.  S.  5. 

4  New  Orleans  Water  Works  v.  Rivers,  115  U.  S.  674;  St.  Tammany  Water 
Works  v.  N.  O.  Water  Works,  120  id.  64. 

5  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650;  Louisiana 
Gas  Co.  v.  C/Gas  Co.,  ibid.  683. 

6  Hartman  v.  Greenhow,  102  U.  S.  672;  Virginia  Coupon  Cases,  114  id. 
270;  Royall  v.  Virginia  116  id.  572 ;  Same  v.  Same,  121  id.  105. 

7  Keith  v.  Clark,  97  U.  S.  454;  Furman  v.  Nichol,  8  Wall.  44. 

8  Woodruff  v.  Trapnell,  10  How.  190;  Paut  v.  Drew,  ibid.  218;  Trigg  v. 
Same,  ibid.  224. 

9  Murray  v.  Charleston,  96  U.  S.  432. 

10  Curran  v.  Arkansas,  15  How.  304;  Barings  v.  Dabney,  19  Wall.  1. 

11  Green  v.  Biddle,  8  Wheat.  1. 


GRANTS    TO    MUNICIPALITIES.  173 

annul  or  modify  such  contracts  to  the  prejudice  of  the 
private  rights  so  vested. 

70.  There  can   be  no  contract  between   a  state  and 
a  political  subdivision  of  a  state,  such  as  a  munici- 
pality,  giving  to    the   municipality   a  vested  right  to 
property,  for  all  such  property  rights  are  held  by  the 
municipality  in  trust  for  the  state,  and  are  subject  to  re- 
vocation at  the  state's  pleasure.1     Therefore,  a  statute 
imposing  a  pecuniary  penalty  upon  a  railway,  payable 
by  it  to  a  county  of  the  state  for  its  failure  to  locate  the 
railway  on  a  certain  line,  does  not  constitute  a  contract 
between  the  county  and  the  railway  whose  obligation  is 
impaired  by  a  subsequent  repeal  of  the  statute.2     On 
the  same  principle,  a  legislative  charter  of  a  railway, 
granting  to  it  power   to   appropriate    public    wharves 
erected  5y  a  municipality  under  a  prior  legislative  grant 
of  authority,  does  not  impair  the  obligation  of  any  con- 
tract, nor  infringe  upon  the  rights  of  the  municipality.3 

71.  The  next  mooted  question  under  this  clause  of 
the  Constitution  was  whether  or  not  a  charter  of  incor- 
poration granted  by  a  state  constituted  an  implied  con- 
tract on  the  part  of  the  state,  whose  obligation  the  state 
could  not  be  permitted  to  impair  by  a  subsequent  repeal 
or  modification  of  the  charter.     The  leading   case  is 
Trustees  of  Dartmouth   College  v.  Woodward,4  judg- 
ment in  which  was  rendered  in  1819,  and   the  facts  in 
which  were  that,  in  1769,  the  Royal  Governor  of  the 
Province  of  New  Hampshire,  acting  in  the  name  of  the 
King,  granted   to   Dr.   Wheelock    and    eleven   other 
persons  a  charter,  whereby  they  were  incorporated  under 
the  title  of  "  The  Trustees  of  Dartmouth  College/'  with 

1  East  Hartford  v.  Hartford  Bridge  Co,  10  How.  511 ;   Maryland  v.  B.  &0. 
R.  R-,  3  id..  551 ;  R.  R.  v.  Ellerman.  105  U.  S.  1G6. 

2  Maryland  v.  B.  &O.  R.  R.,  3  How.  534. 

3  R.  R.  v.  Ellerman,  105  U.  S.  166.  *  4  Wheat.  518. 


174  IMPAIRMENT    OF   CONTRACTS. 

perpetual  succession,  and  with  "  the  whole  power  of 
governing  the  college,  of  appointing  and  removing 
tutors,  of  fixing  their  salaries,  of  directing  the  course  of 
study  to  be  pursued  by  the  students,  and  of  filling 
vacancies  created  in  their  own  body."  After  the 
charter  had  been  granted  to,  and  accepted  by,  the  cor- 
poration, "  property  both  real  and  personal,  which  had 
been  contributed  for  the  benefit  of  the  college,  WHS  con- 
veyed to  and  vested  in  the  corporate  body."  Acts  of 
the  legislature  of  the  state  of  New  Hampshire,  passed 
on  27  June,  and  18  December,  1816,  increased  "the 
number  of  trustees  to  twenty-one,"  gave  "the  appoint- 
inent  of  the  additional  number  to  the  executive  of  the 
state,"  and  created  "  a  board  of  overseers,  to  consist  of 
twenty-five  persons,  of  whom  twenty-one  are  also  ap- 
pointed by  the  executive  of  New  Hampshire,"  with 
"  power  to  inspect  and  control  the  most  important  acts 
of  the  trustees."  Prior  to  the  enactment  of  these 
statutes,  one  Woodward  was  the  secretary  and  treasurer 
of  the  corporation,  and,  as  such,  he  had  in  his  possession 
the  charter,  corporate  seal,  records,  and  certain  chattels 
belonging  to  the  corporation;  in  1810  the  trustees  re- 
moved him  from  office;  in  1817  he  was  appointed  Sec- 
retary and  Treasurer  of  the  new  Board  of  Trustees, 
which  was  organized  under  the  statutes  of  1816,  and,  as 
he  refused  to  surrender  to  the  original  corporation  the 
property  which  was  in  his  hands,  that  corporation 
brought  an  action  of  trover  in  a  court  of  the  state  of 
New  Hampshire  against  him,  in  which  the  facts  as 
stated  having  been  found  by  a  special  verdict,  judgment 
was  entered  in  favour  of  the  defendant  by  the  state  court 
of  last  resort,  and  the  cause  was  removed  by  writ  of 
error  to  the  Supreme  Court  of  the  United  States,  which 
reversed  the  judgment  of  the  state  court,  the  ground  of 
decision  being  that  the  college  as  incorporated  was  a 


CHARTERS    AS    CONTRACTS.  175 

private  eleemosynary  corporation ;  that  its  charter,  in 
terms,  and  by  force  of  the  donations  of  funds  made  on 
the  faith  of  it,  constituted  a  contract  between  the  colo- 
nial  government  and  the  corporation  as  the  repre- 
sentative of  the  donors  of  those  funds ;  that  it  was  an 
implied,  but  essential,  condition  of  that  contract  that  that 
charter  should  not  be  so  modified,  without  the  consent  of 
the  corporation,  as  to  substitute  governmental  control 
for  the  will  of  the  donors ;  that,  by  the  revolution,  the 
duties, as  well  as  the  powers,  of  government  devolved  on 
the  people  of  New  Hampshire,  and  the  obligations  im- 
posed by  the  charter  were  the  same  under  the  state 
government,  as  they  had  formerly  been  under  the 
colonial  government ;  and  that  the  effect  of  the  statutes 
of  1816  was  to  substitute  the  will  of  the  state  for  the 
will  of  the  donors,  and,  to  that  extent,  to  impair 
the  obligation  of  the  contract  between  the  state 
and  the  corporation,  as  made  by  the  charter. 
Marshall,  C.  J.,  in  his  judgment,1  after  accepting  the 
suggestion,  that  "  taken  in  its  broad,  unlimited  sense, 
the  clause  would  be  an  unprofitable  and  vexatious  inter- 
ference with  the  internal  concerns  of  a  state,  would  un- 
necessarily and  unwisely  embarrass  its  legislation,  and 
render  immutable  those  civil  institutions,  which  were 
established  for  purposes  of  internal  government,  and 
which,  to  subserve  those  purposes,  ought  to  vary  with 
varying  circumstances ;"  and  "  that  as  the  framers  of  the 
Constitution  could  never  have  intended  to  insert  in  that 
instrument  a  provision  so  unnecessary,  so  mischievous, 
and  so  repugnant  to  its  general  spirit,  the  term  '  contract ' 
must  be  understood  in  a  more  limited  sense/'  expressly 
conceded,  that  "  the  framers  of  the  Constitution  did  not 
intend  to  restrain  the  states  in  the  regulation  of  their 
civil  institutions,  adopted  for  internal  government,  and 

1  4  Wheat,  pp.  628,  629. 


176          IMPAIRMENT  OF  CONTEACTS. 

that  the  instrument  they  have  given  us  is  not  to  be  so 
construed,"  and  that  "  the  provision  of  the  Constitution 
never  has  been  understood  to  embrace  other  contracts, 
than  those  which  respect  property,  or  some  object  of 
value,  and  confer  rights  which  may  be  asserted  in  a 
court  of  justice/7  put  his  judgment  on  the  ground  that 
the  charter  of  the  College  constituted  a  contract  as  here- 
inbefore stated.  Applying  to  the  Dartmouth  College 
Case,  the  test  so  clearly  stated  by  Marshall,  C.  J.,  in 
Ogden  v.  Saunders,1  that  "  the  positive  authority  of  a 
decision  is  co-extensive  with  the  facts  on  which  it  is 
made,"  it  is  obvious  that  the  case  is  an  authority  for 
the  proposition,  that  the  grant  by  a  state  of  a  charter 
of  incorporation  for  private  purposes  unconnected  with 
the  administration  of  government  constitutes  a  con- 
tract between  the  state  and  the  corporation,  whose  obli- 
gation is  not  to  be  permitted  to  be  impaired  by  a 
material  modification  of  the  terms  of  the  charter, 
either  expressed  or  implied,  and  that,  in  every  such 
charter  it  is  an  implied  condition  of  the  contract,  that 
the  state  shall  not  by  subsequent  legislation  change 
either  the  purpose  of  the  corporation,  or  its  system  of 
administration. 

72.  The  later  cases  have  narrowed  the  doctrine  of 
the  Dartmouth  College  Case  with  regard  to  the  implied 
contracts  created  by  charters,  and  thereby  made  obliga- 
tory on  the  states  granting  them.  In  Providence 
Bank  v.  Billings,2  it  was  decided,  in  1830,  that  the 
grant  of  corporate  privileges  does  not  carry  with  it  any 
implied  exemption  of  either  the  corporate  franchise,  or 
property,  from  state  taxation,  and  this  principle  has 
been  re-asserted  in  the  later  cases  of  Memphis  Gaslight 
Co.  v.  Shelby  County,3  N.  M.  K.  R  v.  Maguire,4  Bailey 

1  12  Wheat.  333.  8  109  U.  S.  398. 

2  4  Pet.  575.  *  20  Wall.  46. 


IMPLIED   PRIVILEGES.  177 

v.  Maguire,1  and  Tucker  v.  Ferguson.2  Following  in 
the  same  line,  it  has  been  held  that  the  imposition  in 
a  charter  of  a  specific  form,  or  rate  of  taxation,  is  not 
to  be  construed  in  the  absence  of  an  express  contract 
of  exemption  from  other  taxation  to  constitute  an  im- 
plied exemption  from  such  other  taxation.3 

7o.  On  the  same  principle,  it  has  been  held  that,  legis- 
lative grants  of  exclusive  privileges  are,  in  the  interests 
of  the  public,  to  be  strictly  construed,  and,  therefore, 
charters  of  incorporation  do  not  vest  in  the  corporation 
any  powers  other  than  those  expressly  granted.4  From 
this  it  follows  that  charters  do  not  grant  by  implication 
exclusive  privileges  or  exemptions  ;  thus  the  creation 
of  a  corporation  with  power  to  erect  a  toll  bridge,  or  to 
operate  a  ferry,  does  not  impliedly  bind  the  state  not  to 
license  the  establishment  of  a  competing  bridge,  or 
ferry,  either  toll  or  free.5  Nor  does  the  charter  of  a 
corporation  by  a  state  constitute  a  contract  by  the  state 
either  with  the  corporation,  or  with  the  creditors 
thereof,  that  the  corporation  shall  not  be  subsequently 
dissolved  after  due  legal  proceedings  founded  upon  a 
forfeiture  of  the  corporate  franchises  either  for  misuser 
or  for  non-user.6 

74.  There  is  no  implied  contract  in  a  charter,  that 
the  state  will  exempt  the  corporate  franchises  and  prop- 

1  22  Wall.  215.  2  22  id.  527. 

3  The  Delaware  Railroad  Tax,  IS  Wall.  206;  Erie  Railway  v.  Penna.,  21 
Wall.  492 ;  The  License  Cases,  5  id.  462 ;  Home  Insurance  Co.  v.  Augusta,  93 
U.S.  110. 

4  Rice  v.  M.  &  N.  W.  R.  R.,  1  Bl.  358 ;  Charles  River  Bridge  v.  Warren 
Bridge,  11  Pet.  544;  Mills  v.  St.  Clair  County,  8  How.  581 ;  R.  R.  R.  v.  L.  R. 
R.,  13  How.  81 ;  O.  L  &  T.  Co.  v.  Debolt,  16  How.  435 ;  Perrine  t».  C.  C.  Co., 
9  How.  192;  J.  B.  Bank    v.  Skelly,  1  Bl.  436;    The  Bingharaton  Bridge,  3 
Wall.  51,  75. 

5  Funning  r.  Gregoire,  16  How.  524;  Turnpike  Co.  v.  State,  3  Wall.  210; 
Wright  v.  Xaglo,  101  U.  8.791. 

fi  Mnmma  v.  The  Potomac  Co.,  8  Pet.  281,  286 ;  Chicago  Life  Ins.  Co.  v. 
Needles,  113  U.  S.  574,  584. 
12 


178  IMPAIRMENT    OF    CONTRACTS. 

erty  from  the  operation  of  the  police  power  of  the  state, 
A  state,  therefore,  may  limit  by  subsequent  legislation 
the  rates  of  fare  and  freight  charged  by  its  railways.1  A 
state  may,  in  the  case  of  a  railway  whose  charter  au- 
thorizes it  from  time  to  time  to  fix,  regulate,  and  receive 
tolls  and  charges  vest  in  a  commission  by  a  subsequent 
statute  the  power  of  fixing  those  rates.2  Nor  can  a  state 
surrender  by  implication,  the-  right  to  regulate  by 
subsequent  legislation  the  location  of  railway  stations 
and  the  stoppage  of  trains  at  such  stations.3  A  state 
may  by  statute  regulate  the  rates  of  a  water  corporation 
whose  charter  vested  the  power  of  fixing  the  rates  in  a 
board  of  commissioners,  some  of  whom  were  appointed 
by  the  company.4  A  state  may  forbid  the  continued 
prosecution  of  their  respective  trades  by  corporations 
organized  for  the  purpose  of  manufacturing  and  selling 
liquors,5  or  selling  lottery  tickets  and  drawing  lotteries,6 
or  rendering  dead  animals  and  offal  into  fertilizers.7  So 
also  a  state  may,  in  derogation  of  previous  grants  of 
exclusive  privileges  for  the  conduct  of  a  business,8  which 
is  necessarily  subject  to  police  regulation,  such  as  that 
of  slaughtering  cattle,  authorize  others  to  conduct  the 
same  business. 

75.  In  Dartmouth  College  v.  Woodward,9  Marshall, 
C.  J.,  conceded  that  "  the  framers  of  the  Constitution 
did  not  intend  to  restrain  a  state  from  the  regulation  of 

1  C.,  B  &  Q.  K.  R.  v.  Iowa,  94  U.  S.  155 ;  Peik  v.  C.  &  N.  W.  Ry.,  ibid.  164  ; 
M.  &  St.  P.  R  R.  v.  Atlee,  ibid.  179 ;  W.  &  St.  P.  R.  R.  v.  Blake,  ibid.  ISO;  Stone 
v.  Wisconsin,  ibid.  181 ;  Ruggles  v.  Illinois,  103  U.  S.  526. 

2  Stone  v.  F.  L.  &  T.  Co.,  116  U.  S.  307 ;  Same  v.  I.  C.  R.  R.,  ibid.  347. 

3  M.  H.  &  N.  R.  R.  v.  Hamersly,  104  U.  S.  1. 

4  S.  V.  Water  Works  v.  Schottler,  110  U.  S.  347. 

5  Beer  Co.  v.  Massachusetts,  97  U.  S.  25. 

6  Plialen  v.  Virginia,  8  How.  163;  Boyd  v.  Alabama,  94  U.  S.  645;  Stone  v. 
Mississippi,  100  id.  814. 

7  Fertilizing  Co  v.  Hyde  Park,  97  U.  S.  659. 

8  Butchers'  Union  v.  Crescent  City,  111  U.  S.  746. 

9  4  Wheat.  629. 


IMPLIED    CONTRACTS.  179 

its  civil  institutions  adopted  for  internal  govern- 
ment." On  this  principle,  there  can  be  no  implied  con- 
tract on  the  part  of  a  state  that  it  will  not  amend  its 
Constitution,  in  so  far  as  that  Constitution  deals  with  the 
administration  of  the  public  concerns  of  the  state.1  Nor 
can  a  state  legislature  bind  subsequent  legislatures  as  to 
the  exercise  of  the  powers  of  sovereignty  over  the 
political  subdivisions  of  the  state,  and  over  its  muni- 
cipal corporations  with  regard  to  subject-matters  of  pub- 
lic and  not  of  private  interest,  as,  for  instance,  the  loca- 
tion of  a  county  seat,2  or  the  boundaries  of  its  munici- 
palities,3 or  the  sale  of  property  held  by  a  municipal- 
ity for  public  purposes,  such  as  water  works,4  or  the 
appropriation  under  state  authority  of  municipal  obli- 
gations by  their  holders  as  a  set-off  against  municipal 
claims  against  those  holders  ; 5  nor  does  the  appointment 
by  the  state  of  a  public  officer  for  a  fixed  term  for  a 
stipulated  compensation  constitute  a  contract  between 
the  state  and  the  appointee  whose  obligation  is  impaired 
by  either  the  reduction  of  his  compensation  or  his 
removal  from  office,6  but  after  the  duties  have  been  per- 
formed by  the  appointee  of  a  municipal  corporation 
during  the  term  of  his  office  there  is  a  contract  whose 
obligation  is  impaired  by  a  subsequent  statute  abolish- 
ing the  power  of  taxation  for  the  payment  of  his  com- 
pensation.7 Of  course,  in  the  case  of  an  officer  appointed 
under  a  statute  which  in  terms  defines  the  tenure  of  the 
office  to  be  according  to  law,  a  subsequent  statute  remov- 
ing him  is  not  an  impairment  of  the  contract.8 

1  Church  v.  Kelsey,  121  U.  S.  282. 

2  Newton  v.  Commissioners,  100  U.  S.  548. 

3  U.  S.  v.  Memphis,  97  U.  S.  284. 

4  New  Orleans  r.  Morris,  105  U.  S.  600. 
6  Amy  v.  Shelby  County,  114  U.  S.  187. 

6  Butler  v.  Pennsylvania,  10  Howard  402. 

7  Fisk  v.  J.  Police  Jury,  116  U.  S.  131. 

8  Head  v.  University,  19  Wall.  526. 


180  IMPAIRMENT    OF    CONTRACTS. 

76.  The  state's  consent  to  be  sued  being  voluntary  and  of 
grace,  that  consent  does  not  constitute  a  contract  whose 
obligation  can  be  impaired  by  a  subsequent  repeal  of  the 
statute  permitting  such  suit,1  especially  where  the  statute 
authorizing  the  suit  has  provided  no  means  for  the  enforce- 
ment of  any  judgment  that  may  be  rendered  against  the 
state.  Under  such  circumstances  the  state  may,  by  sub- 
sequent legislation,  withdraw  its  consent  to  be  sued,2  In 
this  connection,  that  which  was  forcibly  said  by  Mathews, 
J.,  in  the  judgment  of  the  court  in  the  case  of  In  re 
Ay  res,3  may  well  be  borne  in  mind.  The  learned  judge 
said  :  "  it  cannot  be  doubted  that  the  XI  Amendment 
to  the  Constitution  operates  to  create  an  important  dis- 
tinction between  contracts  of  a  state  with  individuals 
and  contracts  between  individual  parties.  In  the  case 
of  contracts  between  individuals,  the  remedies  for  their 
enforcement  or  breach,  in  existence  at  the  time  they  were 
entered  into,  are  a  part  of  the  agreement  itself,  and  con- 
stitute a  substantial  part  of  its  obligation.4  That  obliga- 
tion .  .  .  cannot  be  impaired  by  any  subsequent 
legislation.  Thus,  not  only  the  covenants  and  conditions 
of  the  contract  are  preserved,  but  also  the  substance  of 
the  original  remedies  for  its  enforcement.  It  is  different 
with  contracts  between  individuals  and  a  state.  In  re- 
spect to  these,  by  virtue  of  the  XI  Amendment  to  the 
Constitution,  there  being  no  remedy  by  a  suit  against  the 
state,  the  contract  is  substantially  without  sanction,  ex- 
cept that  which  arises  out  of  the  honour  and  good 
faith  of  the  state  itself,  and  these  are  not  subject  to 
coercion.  Although  the  state  may,  at  the  inception  of 
the  contract,  have  consented  as  one  of  its  conditions  to 

1  Beers  v.  Arkansas,  20  How.  527  ;  Bank  of  Washington  v.  Same,  ibid.  530. 

2  M.  &  C.  R.  R.  v.  Tennessee,  101  U.  S.  337 :  S.  &  N,  A.  R.  R.  v.  Alabama, 
ibid.  51. 

3  123  TL  S.  504. 

4  Louisiana  v.  New  Orleans.  102  U.  S.  203. 


THE  FORCE   OF   THE   PROHIBITION.  181 

subject  itself  to  suit,  it  may  subsequently  withdraw  that 
consent  and  resume  its  original  immunity,  without  any 
violation  of  the  obligation  of  its  contract  in  the  consti- 
tutional sense." 

77.  The  force  and  effect  of  the  prohibition,  as  con- 
strued by  the  court,  is,  that  a  state  may  not,  by  any  law 
or  by  any  act  to  which  the  state,  by  its  enforcement 
thereof,  gives  the  force  of  a  law,  deprive  a  party  of  the 
legal  right  of  enforcing,  or  obtaining  compensation  for 
the  breach  of,  an  express  contract,  executed  or  execu- 
tory, between  individuals,  or  between  a  state  and  indi- 
viduals, but  a  state  may  regulate  or  limit  the  remedies 
of  the  contracting  parties,  provided  that  it  leaves  in  force 
a  substantial  part  of  the  legal  remedies  which  subsisted 
at  the  time  of  the  making  of  the  contract. 

1  Beers  v.  Arkansas,  20  How.  527 ;  Railroad  Company  v.  Tennessee,  101 
U.  S.  337. 


CHAPTEE  VI. 

EX   POST   FACTO   LAWS    AND   BILLS   OF   ATTAINDER. 

78.  The  constitutional  provisions. 

79.  The  distinction  between  retrospective  and  ex  post  facto  laws. 

80.  Ex  post  facto  laws  defined. 

81.  Illustrations  of  ex  post  facto  laws. 

82.  Illustrations  of  laws  which  are  not  ex  'post  facto. 

83.  Bills  of  attainder  and  bills  of  pains  and  penalties. 

78.  Section  10  of  article  I  of  the  Constitution  declares 
that  "  no  state  shall     .     .     .     pass  any  bill  of  attainder 
or  ex  post  facto  law."    Section  9  of  article  I  of  the  Con- 
stitution, restricting  the  powers  of  Congress,  declares 
that  "no  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed." 

79.  Ex  post  facto  laws  relate  to  criminal,  and  not  to 
civil,  procedure.    They  are  necessarily  retrospective,  but 
all  retrospective  laws  are  not  ex  post  facto?    State  laws 
which  operate  retrospectively,  or  which  divest  antece- 
dently vested  rights  of  property,  are  not  prohibited  by  the 
Constitution  of  the  United  States,  if  they  are  not  ex  post 
facto  laws,  and  if  they  do  not  impair  the  obligation  of  con- 
tracts.3   A  state   legislature,  unless   restrained    by  the 
Constitution  of  the  state,  may,  therefore,  enact  statutes 
setting  aside  a  decree  of  a  court  of  probate,  refusing  to 

1  Calder  v.  Bull,  3  Ball.  386 ;  "Watson  v.  Mercer,  8  Pet.  88,  110 ;  Carpenter 
v.  Pennsylvania,  17  How.  456. 

8  Calder  v.  Bull,  3  Dall.  386. 

3  Calder  v.  Bull,  3  Dall.  386;  Fletcher  v.  Peck,  6  Cr.  138 ;  Ogden  v.  Saun- 
ders.  12  Wheat.  266 ;  Satterlee  v.  Matthewson,  2  Pet.  380  ;  Watson  v.  Mercer, 
8  Pet.  88,  110;  Carpenter  v.  Pennsylvania,  17  How.  456;  B.  &  S.  E.  R.  v. 
Kesbit,  10  How.  £95  ;  Livingstone  v.  Moore,  7  Pet.  469. 

182 


RETROSPECTIVE   LAWS.  183 

allow  probate  of  a  will,  and  granting  a  rehearing  by  the 
court  of  probate  with  liberty  of  appeal  therefrom,  after 
the  time  limited  by  existing  laws  for  an  appeal  has 
passed;1  declaring  that  the  relation  of  landlord  and 
tenant  exists  between  parties  as  to  whom  the  courts  of 
the  state  have  decided,  that  that  relation  does  not  exist  ;2 
curing  -defective  acknowledgments  of  deeds  by  femes 
covert;*  construing  by  a  declaratory  statute,  after  the 
death  of  a  decedent,  existing  tax  laws  so  as  to  subject  to 
a  collateral  inheritance  tax  the  distributive  shares  of 
non-resident  distributees;4  directing  a  county  court  to 
set  aside  an  inquisition  condemning  certain  land  for  the 
use  of  a  railway  and  to  order  a  new  inquisition  ;5  direct- 
ing the  imposition  of  a  tax  according  to  an  assessment 
theretofore  made;6  and  authorizing  the  sale  of  lands  on 
which  the  state  has  a  lien  for  debts  due  to  it.7  Upon 
the  same  principle,  Congress  having  passed  an  act  for 
the  admission  of  a  territory  as  a  state,  and  having  in 
that  act  omitted  to  provide  for  the  disposal  of  causes 
pending  in  the  Supreme  Court  of  the  United  States,  on 
appeal  from  the  territorial  courts,  may  by  a  subsequent 
act  properly  make  provision  for  such  causes,  for  such 
legislation  is  remedial.8  So  also  Congress  may  by  statute 
impose  a  tax  retrospectively.9 

80.  In  Fletcher  v.  Peck,10  Marshall,  C.  J.,  defines  an 
ex  post  jacto  law  to  be  one  "  which  renders  an  act 
punishable  in  a  manner  in  which  it  was  not  pun- 

Calder  v.  Bull,  3  Dall.  386. 
Satterlee  r.  Matthewson,  2  Pet.  380. 
Watson  v.  Mercer,  8  Pet.  88. 
Carpenter  v.  Pennsylvania,  17  How.  456. 
B.  &  8.  R.  R.  v.  Nesbit,  10  How.  395. 
Locke  t».  New  Orleans,  4  Wall.  172. 
Livingstone  v.  Moore,  7  Pet.  469. 
Freeborn  v.  Smith,  2  Wall.  160. 
Stockdale  v.  The  Insurance  Companies,  20  Wall.  223. 
10  6  Cr.  138. 


184  EX   POST   FACTO. 

ishable  when  it  was  committed.''  In  Cummings  v. 
Missouri,1  Field,  J.,  defines  an  ex  post  facto  ]aw,  as 
"  one  which  imposes  a  punishment  for  an  act  which 
was  not  punishable  at  the  time  it  was  committed  ; 
or  imposes  additional  punishment  to  that  then  pre- 
scribed ;  or  changes  the  rules  of  evidence  by  which 
less  or  different  testimony  is  sufficient  to  convict 
than  was  required."  In  Calder  v.  Bull,2  Chase,  J., 
classified  ex  post  facto  laws  as  follows  : — "first,  those 
that  make  an  action,  done  before  the  passing  of  a  law, 
and  which  was  innocent  when  done,  criminal,  and 
punish  such  action  ;  second,  those  that  aggravate  a  crime, 
or  make  it  greater  than  it  was  when  committed  ;  third, 
those  that  change  the  punishment  and  inflict  greater 
punishment  than  the  law  annexed  to  the  crime  when 
committed  ;  and,  fourth,  those  that  alter  the  legal  rules 
of  evidence  and  receive  less  or  different  testimony  to 
convict  the  offender  than  that  required  at  the  time  of 
the  commission  of  the  offense."  That  classification  is 
quoted  with  approval  by  Miller,  J.,  in  his  judgment  in 
Kring  v.  Missouri.3 

81.  Laws  have  been  held  to  be  ex  post  facto,  which, 
after  the  commission  of  an  act,  alter  the  situation  of  the 
accused  to  his  disadvantage,  as  for  instance,  by  provid- 
ing that  the  plea  of  autrefois  convict  should  not  at  a 
second  trial  be  a  defense  in  the  case  of  a  prisoner  con- 
victed of  murder  in  the  second  degree  under  an  indict- 
ment charging  murder  in  the  first  degree,  the  law  hav- 
ing been  at  the  time  of  the  commission  of  the  crime 
that  such  a  plea  was  a  defense;4  or  by  requiring  a 
clergyman,5  or  a  lawyer,6  as  a  condition  precedent  to 
the  practice  of  his  profession,  to  take  an  oath  that  he 

1  4  Wall.  325.  *  Kring  v.  Missouri,  107  U.  S.  221. 

2  3  Dall.  386.  5  Cumraings  v.  Missouri,  4  Wall.  277. 

3  107  U.  S.  221.  6  Ex  parte  Garland,  4  Wall.  333. 


BILLS   OF    ATTAINDER.  185 

has  not  done  an  act,  for  the  doing  of  which,  when  done, 
deprivation  of  office  wras  not  a  legal  penalty  ;  or  by  re- 
quiring one  who  applies  to  a  court  to  open  a  judgment 
rendered  against  him  in  absentia,  to  take  oath,  as  a 
condition  precedent  to  his  obtaining  the  desired  relief, 
that  he  has  not  done  an  act  for  the  doing  of  which  the 
deprivation  of  the  right  to  sue  in  courts  of  justice  was 
not  by  law  antecedently  imposed  as  a  penalty.1  Upon 
the  same  principle,  Congress  cannot  provide,  by  statute, 
that  an  act,  which  is  not  an  offense  against  the  law  at 
the  time  of  its  doing,  may  become  such  by  a  subsequent 
independent  act  with  which  it  has  no  necessary  connec- 
tion ;  as,  for  instance,  that  subsequent  bankruptcy, 
either  voluntary  or  involuntary,  shall  render  criminal 
and  punishable  by  imprisonment  the  obtaining  of  goods 
with  intent  to  defraud  at  any  time  within  three  months 
before  the  commission  of  the  act  of  bankruptcy.2 

82.  On  the  other  hand,  a  law  of  a  state  changing  the 
venue  in  a  criminal  case,  though  passed  subsequently 
to  the  commission  of  the  offense,  is  not  ex  post  facto  ;3 
nor   is   a   law  open  to   that  objection,  which,  though 
passed  after  the  commission  of  an  offense,  enlarges  the 
class  of  persons  who  may   be  competent  to  testify  as 
witnesses  at  the  trial,  as,  for  instance,  by  repealing  a 
statutory  prohibition  of  the  admission  of  the  testimony 
of  convicted  felons,4  nor  is  a  law  ex  post  facto  which 
denies  the  exercise  of  the  right  of  franchise  to  bigamists, 
or   polygamists,    for    "the    disfranchisement    operates 
upon  the  existing  state  and   condition  of  the  person, 
and  not  upon  a  past  offense."  5 

83.  A   bill  of  attainder  is  defined  by  Field,  J.,  in 
Cummings  v.  Missouri,6  as  "  a  legislative  act  which  in- 

1  Pierce  v.  Carskadon,  16  Wall.  234.     *  Hopt  v.  Utah,  110  U.  S.  574. 

2  United  States  r.  Fox,  95  U.  S.  G70.     5  Murphy  v.  Ramsey,  114  U.  S.  15. 

3  Gut  v.  The  State,  9  Wall.  35.  6  4  Wall!  323. 


186  BILLS   OF    PAINS,    ETC. 

flicts  punishment  without  a  judicial  trial,"  and  he  adds, 
"  if  the  punishment  be  less  than  death,  the  act  is 
termed  a  bill  of  pains  and  penalties.  Within  the 
maiming  of  the  Constitution,  bills  of  attainder  include 
bills  of  pains  and  penalties."  It  has  been  held  that  a 
state  Constitution,  requiring  clergymen  as  a  condition 
precedent  to  the  exercise  of  their  profession,  to  take 
oath  that  they  had  not  committed  certain  designated 
acts,  some  of  which  were  at  the  time  offenses  subject  to 
legal  penalties,  and  others  of  which  were  innocent 
acts,1  and  that  a  state  statute  requiring  one  who  applied 
to  a  court  to  open  a  judgment  rendered  against  him  in 
absentia,  to  take  oath  that  he  had  not  committed  cer- 
tain designated  public  offenses,2  and  that  an  act  of  Con- 
gress, requiring  a  lawyer,  as  a  condition  precedent  to 
the  exercise  of  his  profession,  to  take  an  oath  that  he 
had  not  voluntarily  borne  arms  against  the  United 
States,  etc.,3  constituted  in  each  case  a  bill  of  pains  and 
penalties  and  was,  therefore,  subject  to  the  constitu- 
tional prohibition  against  bills  of  attainder,  inasmuch 
as,  by  legislative  action,  and  without  judicial  investiga- 
tion, the  statute  imposed  a  punishment  for  an  act  done 
before  the  enactment  of  the  statute,  the  oath  being 
offered  to  the  party  incriminated  as  a  means  of  com- 
pelling an  admission  of  guilt. 

1  Cummings  v.  Missouri,  4  Wall.  277. 

2  Pierce  v.  Carskadon,  16  Wall.  234. 
&  Ex  parte  Garland,  4  Wall.  333. 


CHAPTER  VII. 

THE  PROHIBITION  OF  STATE  BILLS  OF  CREDIT. 

84.  Bills  of  credit  defined. 

85.  What  are,  and  what  are  not,  bills  of  credit. 

84.  Section  10  of  article  I  of  the  Constitution  de- 
clares that  "no  state  shall  ....  emit  bills  of  credit." 
Bills  of  credit  within  the  meaning  of  this  constitutional 
provision  are  promissory  notes  issued  by  a  state  gov- 
ernment on  its  credit  "  intended  to  circulate  through- 
out the  community  for  its  ordinary  purposes  as  money," 
and  redeemable  on  demand,  or  at  a  day  certain  in  the 
future.1 

85.  A  state,  therefore,  may  not  issue  interest- bearing 
certificates  in  denominations  "not  exceeding  ten  dollars, 
nor  less  than  fifty  cents"  receivable  by  the  state  in 
payment  of  taxes,  and  of  debts  due  to  the  state,  and 
payable  to  officers  of  the  state  in  discharge  of  salaries 
and  fees  of  office,  and  redeemable  by  the  state  under 
an  arrangement  that  there  shall  be  withdrawn  "  annu- 
ally from  circulation  one-tenth  part  of  the  certificates."' 
Nevertheless,  a    state    may  incorporate    a    bank,    of 
which  that  state  shall  be  the  sole  shareholder,  and  it 
may  authorize  that  bank  to  issue  notes  as  circulation, 
without  contravening  the  constitutional  prohibition,  the 
distinction  being  that  such  notes  are  issued,  not  on  the 
credit  of  the  state,  but  on  the  credit  of  the  capital  and 

1  Craig  v.  Missouri,  4  Pet.  411;   Byrne  v.   Missouri,  8  id.  40;  Briscoe  v. 
Bank  of  Kentucky,  11  id.  257. 

2  Craig  v.  Missouri,  4  Pet.  410;  Byrne  v.  Missouri,  8  id.  40. 

187 


188  STATE   BILLS    OF    CKEDIT. 

assets  of  the  bank.1  Coupons  of  state  bonds,  though 
negotiable  and  receivable  for  taxes  due  to  the  state,  are 
not  bills  of  credit,  for  they  are  not  intended  to  circulate 
as  money.2 

1  Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257  ;  Darrington  v.  The  Bank  of 
Alabama,  13  How.  12. 

2  Virginia  Coupons  Case,  119  U.  S.  269,  284. 


CHAPTER  VIII. 

STATE  COMPACTS. 

86.  What  compacts  are  permitted,  and  what  are  forbidden. 

86.  Section  10  of  article  I  of  the  Constitution  de- 
clares, that  "no  state  shall  eater  into  any  treaty,  alli- 
ance, or  confederation No  state  shall,  without 

the  consent  of  Congress,  ....  enter  into  any  agree- 
ment or  compact  with  another  state."  This  constitu- 
tional prohibition  forbids  compacts  between  a  state  and 
foreign  nations,  and  also  compacts  between  states  of  the 
United  States,  to  which  the  assent  of  Congress  has  not 
been  given.  It  is,  therefore,  decisive  against  the  va- 
lidity of  the  confederation  entered  into  by  the  insurgent 
states  in  186 1.1  It  also  forbids  a  governor  of  a  state  to 
enter  into  an  agreement  with  a  foreign  government 
for  the  extradition  of  a  prisoner.2  But  states  may,  with 
the  consent  of  Congress,  enter  into  agreements  touching 
conflicting  boundaries,3  and,  in  such  cases,  the  consent 
of  Congress  does  not  necessarily  have  to  be  given  by 
congressional  legislation  expressly  assenting  to  each  of 
the  stipulations  of  the  agreement  between  the  states,  but 
that  consent  may  be  inferred  from  the  legislation  of 
Congress  touching  the  subject-matter  of  the  agreement.4 

1  Williams  v.  Bruffy,  96  U.  8.  176;  Sprott  v.  U.  S.,  20  Wall.  459  ;  Ford  v. 
Surget,  97  U.  S.  594 ;  U.  S  v.  Keehler,  9  Wall.  83. 

2  Holmes  v.  Jennison,  14  Pet.  540. 

3  Rhode  Island  ?'.  Massachusetts,  12  Pet.  724;  Missouri  v.  Iowa,  7  How. 
660;   Florida  v.  Georgia,  17  id.  478;   Alabama  v.  Georgia,  23  id.  505  ;  Vir- 
ginia v.  West  Virginia,  11  Wall.  39;  Poole  v.  Fleeger,  11  Pet.  185. 

4  Virginia  v.  West  Virginia,  11  Wall.  39. 

189 


CHAPTER  IX. 

FUGITIVES    FROM    JUSTICE. 

87.  The  constitutional  provision. 

88.  The  concurrent  jurisdiction  of  the  federal  and  state  courts. 

87.  Section  2  of  article  IV  of  the  Constitution  declares, 

that"  a  person  charged  in  any  state  with  treason,  felony, 

or  other  crime,  who  shall  flee  from  justice  and  be  found 

in    another  state,  shall   on   demand   of  the    executive 

authority  of  the  state  from  which   he  fled,  be  delivered 

up,  to  be  removed  to  the  state  having  jurisdiction  of  the 

crime."    The  words  "  treason,  felony,  or  other  crime," 

as  Taney,  C.  J.,  said   in   Kentucky  v.  Dennison,1  "  in 

their  plain  and  obvious  import,  as  well  as  in  their  legal 

and  technical   sense,  embrace  every  act   forbidden  and 

made   punishable   by  a  law  of  the   state.     The  word 

'crime'  of  itself  includes  every  offense,  from  the  highest 

to  the  lowest  in  the  grade  of  offenses,  and  includes  what 

are   called    '  misdemeanors,'    as    well    as    treason  and 

felony."      This  constitutional  provision  imposes  on  the 

executive  of  the  state  in   which  the  fugitive  has  taken 

refuge   the   duty    of  surrendering   the  fugitive    upon 

demand  made  by  the  executive  of  the  state  from  which 

the  fugitive  has  fled,  and  upon  proof  made  that  he  has 

been  legally  charged  with  crime,  and  this  duty  has  been 

recognized    by  the  act   of  Congress  of  12  February, 

1793,3  but  if  the  governor  of  the  state  to  which  the 

1  24  How.  99. 

2  See  also  Ex  parte  Reggel,  114U.  S.  642. 

3  1  Stat.  302 ;  Rev.  Stat.,  Sees.  5278,  5279. 

190 


FUGITIVES    FROM    JUSTICE.  191 

fugitive  has  fled  refuses  to  deliver  him  up  to  justice, 
"  there  is  no  power  delegated  to  the  general  govern- 
ment, either  through  the  judicial  department  or  any 
other  department,  to  use  any  coercive  means  to  com  j  el 
him."1  The  Supreme  Court  of  the  United  States,  there- 
fore, will  not  issue  a  mandamus  to  compel  the  perfor- 
mance by  a  governor  of  a  state  of  his  constitutional  duty 
of  surrendering  to  another  state  a  fugitive  from  the 
justice  of  that  state.2 

88.  An  alleged  fugitive  from  justice  may  petition 
a  court  of  the  United  States  for  a  writ  of  habeas 
corpus  to  inquire  into  the  legality  of  his  detention, 
but  as  the  responsibility  of  determining  whether  or 
hot  the  alleged  fugitive  from  justice  be  in  fact  a  fugi- 
tive from  justice,  rests  upon  the  executive  of  the  state 
to  which  the  fugitive  has  fled,  a  court  of  the  United 
States  will  not  discharge  the  fugitive  upon  the  hearing 
of  the  writ  of  habeas  corpus,  because,  in  its  judgment  the 
proof  that  the  prisoner  is  a  fugitive  from  justice  is, 
though  satisfactory  to  the  executive,  not  as  complete 
as  might  have  been  required.3  The  alleged  fugitive 
may  also  apply,  by  petition  for  a  writ  of  habeas  cor}m*, 
to  a  court  of  the  state  within  which  he  is  detained  in 
custody  for  the  purpose  of  being  delivered  to  the  justice 
of  another  state,  for  the  jurisdiction  of  the  courts  of  the 
United  States  over  such  petitions  for  writs  of  habeas 
corpus  is  not  exclusive  of  the  jurisdiction  of  the  courts 
of  the  states  in  such  cases,  and  the  agent  of  the  state 
demanding  the  surrender  of  the  alleged  fugitive  is  in  no 
sense  an  officer  of  the  United  States,  nor  otherwise 
exempt  from  the  process  of  the  courts  of  the  states.4 


1  perTaney,  C.  J.,  in  Kentucky  v.  Pennison,  24  How.  109, 

2  Kentucky  v.  Dennison,  24  How.  66. 

3  Ex  parte  Reggel  114  U.  S.  642. 

4  Robb  v.  Connolly,  111  U.  S.  624. 


CHAPTEE  X. 

THE  JUDICIAL  POWEK. 

89.  The  necessity  for  the  existence  of  ajudicial  department  of  the  United 

States. 

90.  The  constitutional  provisions. 

91.  The  terms  of  the  grant  of  federal  jurisdiction. 

-  92.  The  exclusive  jurisdiction. 

-  93.  The  original  jurisdiction. 

94.  Removal  of  causes  from  state  courts  to  the  courts  of  the  United  States. 

95.  The  appellate  and  supervisory  jurisdiction. 

96.  The  requisites  of  ajudicial  case. 

97.  Courts  martial. 

98.  Impeachment. 

99.  The  judicial  construction  of  the  Constitution. 

100.  The  XI  Amendment. 

101.  Section  2  of  Article  III  of  the  Constitution,  and  the  IV  Amendment. 

102.  The  V  Amendment. 

103.  The  VI  Amendment. 

104.  The  VII  Amendment. 

105.  The  exemption  of  federal  process  from  state  control. 

106.  Limitation  of  federal  process  by  the  reserved  rights  of  the  states. 

107.  The   limitations    of  state    jurisdiction   and   process   by   the   federal 

supremacy. 

108.  The  rule  as  to  conflict  of  jurisdiction. 

109.  The  XIV  Amendment  as  affecting  state  jurisdiction. 

110.  The  effect  of  Section  1  of  Article  IV  of  the  Constitution. 


89.  It  is,  under  any  form  of  government,  essential  to 

the  enforcement  of  the  laws  with  a  due  regard  to  the 

maintenance  of   the   liberties  of   the  citizens,   that  a 

judicial   department,    independent    by   reason   of  the 

security  of  the  tenure  of  office  and  adequacy  of  com- 

'  pensation  of  the  judges,  should  be  charged   with  the 

duty,  and  entrusted  with  the  power,  of  construing  the 

laws,  and  of  finally  determining  issues  of  fact  and  of 

law  in  prosecutions  for  crime  and  in  litigations  as  to 

192 


THE    JUDICIAL    POWER.  193 

individual  rights.  Having  regard  to  the  relation  be- 
tween the  United  States  and  the  states,  and  bearing  in 
mind  that  the  United  States  cannot  impose  duties  upon 
officers  of  the  states,  and  compel  the  performance  by 
those  officers  of  the  duties  so  imposed,1  it  is,  in  an 
especial  degree,  essential  that  the  United  States  should  / 
have  the  power  of  establishing  courts  of  civil  and 
criminal  jurisdiction  for  the  punishment  of  offenses 
against  the  laws  of  the  United  States,  and  for  the  pro- 
tection and  enforcement  of  rights  created  by  the  Con- 
stitution, laws,  and  treaties  of  the  United  States.  It  is 
also  necessary  to  the  enforcement  of  the  declared 
supremacy  of  the  Constitution,  laws,  and  treaties  of  the 
United  States,  that  a  court  constituted  by  the  United 
States  with  jurisdiction  co-extensive  with  the  territory 
subject  to  the  Constitution,  should  be,  so  far  as  regards 
all  subjects  of  judicial  cognizance,  the  final  arbiter  by  | 
whom  the  construction  of  the  Constitution  of  the 
United  States  is  to  be  authoritatively  determined^2  for 
otherwise  the  Constitution  might  have  one  meaning  in 
one  state,  and  a  different  meaning  in  another  state,  and 
it  might  be  construed  in  one  way  in  one  court  and  in 
another  way  in  another  court,3  and  if  the  legislative, 
executive,  and  judicial  departments  of  the  several  states 
were  at  liberty  to  conclusively  determine  for  themselves 
the  construction  of  that  instrument,  and  the  nature  and 
the  extent  of  the  restraints  upon  freedom  of  state  action 
imposed  by  it,  those  restraints  would  bind  any  one  state 
only  in  so  far  as  that  state  might  choose  to  be  bound  at 
any  particular  time,  and  the  inevitable  result  would  be, 

1  Prigg  v.  Pennsylvania   16  Pet,  539;  Kentucky  v.  Dennison,  24  How.  66. 

2  Cohens  v.  Virginia,  6  Wheat.  2M;  Bank  of  Hamilton  v.  Dudley's  Lessee, 
2  Pet.  429,  524  ;  Dodge  v.  Woolsey,  18  How.  331,  347;  Martin  r.  Hunter^ 
Lessee,  1  Wheat.  304. 

3  Marbury  v.  Madison,  1  Cr.  137;  Van  Home  v.  Dorrance,  2  Dall.  304; 
The  Mayor  r.  Cooper,  G  Wall.  253 ;  Norton  v.  Shelby  County,  118  U.  S.  443. 

13 


194  THE   JUDICIAL    POWER. 

as  Marshall,  C.  J.,  said  in  Cohens  v.  Virginia,1  to  pros- 
trate the  federal  "  government  and  its  laws  at  the  feet  of 
every  state  in  the  Union." 

90.  In  recognition  of  these  principles,  and  in  order  to 
give  practical  effect  to  them,  the  Constitution  has  created 
a  judicial  department  of  the  government  of  the  United 
States.  Section  1  of  article  III  declares,  that  "the 
judicial  power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court,  and  in  such  inferior  courts  as  the 
Congress  may,  from  time  to  time,  ordain  and  establish. 
The  judges,  both  of  the  Supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behaviour,  and  shall, 
at  stated  times,  receive  for  their  services  a  compen- 
sation, which  shall  not  be  diminished  during  their  con- 
tinuance in  office."  Section  2  declares  that  "the 
judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority ;  to  all  cases  affecting  am- 
bassadors, or  other  public  ministers  and  consuls  ;  to  all 
cases  of  admiralty  and  maritime  jurisdiction  ;  to  contro- 
versies to  which  the  United  States  shall  be  a  party ;  to 
controversies  between  two  or  more  states;  between  a 
state  and  citizens  of  another  state ;  between  citizens  of 
different  states;  between  citizens  of  the  same  state  claim- 
ing lands  under  grants  of  different  states,  and  between 
a  state,  or  the  citizens  thereof,  and  foreign  states,  citizens, 
or  subjects.  In  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  and  those  in  which  a 
state  shall  be  a  party,  the  Supreme  Court  shall  have 
original  jurisdiction.  In  all  the  other  cases  before  men- 
tioned, the  Supreme  Court  shall  have  appellate  Juris- 
diction, both  as  to  law  and  fact,  with  such  exceptions 
and  under  such  regulations  as  theCongress  shall  make." 

1  6  Wheat.  385. 


FEDERAL   JURISDICTION.  195 

91.  The  Constitution  has,  therefore, conferred  upon  the 
courts  of  the  United  States  jurisdiction  in  two  classes  of 
causes,  depending  in  the  one  class  on  the  character  of  the 
caa.se,  and  iu  the  other  class  on  the  character  of  the  parties.1 

1  Cohens  v.  Virginia,  6  Wheat.  264,  378;  Martin  v.  Hunter's  Lessee,  1 
Wheat.  304,  331,  3-« ;  The  Moses  Taylor,  4  Wall.  411,  429.  Jay,  C.  J.,  in  his 
ju  Igment  in  Chisholm  v.  Georgia,  2  Dall.  475,  after  referring  to  the  decla- 
ration in  the  preamble  to  the  Constitution,  that  that  instrument  was  ordained, 
in'fir  alia,  "  to  establish  justice,"  added,  "  it  may  be  asked,  what  is  the  precise 
sense  ami  latitude  in  which  the  words  '  to  establish  justice,'  as  here  used,  are  to 
bj  understood  ?  The  answer  to  this  question  will  result  from  the  provisions 
m  tie  in  the  Constitution  on  this  head.  They  are  specified  in  the  2d  section 
of  the  3d  article,  where  it  is  ordained,  that  the  judicial  power  of  the  United 
Slates  shall  extend  to  ten  descriptions  of  cases,  viz,  1st:  to  all  cases  arising 
under  this  Constitution ;  because  the  meaning,  construction,  and  operation  of 
a  compact  ought  always  to  be  ascertained  by  all  the  parties,  or  by  authority 
derived  only  from  one  of  them  :  2d  :  to  all  cases  arising  under  the  laws  of  the 
United  Sides  ;  because  as  such  laws,  constitutionally  made,  are  obligatory  on 
each  state,  the  measure  of  obligation  and  obedience  ought  not  to  be  decided 
and  fixed  by  the  party  from  whom  they  are  due,  but  by  a  tribunal  deriving 
authority  from  both  the  parties:  3d:  to  all  cases  arising  under  treaties  made 
by  their  authority  ;  because,  as  treaties  are  compacts  made  by,  and  obligatory 
on,  the  whole  nation,  their  operation  ought  not  to  be  affected  or  regulated  by 
the  1  >cal  laws  or  courts  of  a  part  of  the  nation:  4th:  to  all  cases  affecting 
Ambassadors,  or  other  public  Ministers  and  Consuls;  because,  aa  these  are 
officers  of  foreign  nations,  whom  this  nation  is  bound  to  protect  and  treat 
ace  irding  to  the  laws  of  nations,  cases  affecting  them  ought  only  to  be  cog- 
nizable by  nat'onal  authority:  5th:  to  all  cases  of  Admiralty  and  Maritime 
jurisdiction  ;  because,  as  the  seas  are  the  joint  property  of  nations,  whose  right 
and  privileges  relative  thereto,  are  regulated  by  the  law  of  nations  and  treaties, 
such  ruses  necessarily  belong  to  national  juiisdiction :  6th:  to  controversies 
to  which  the  United  Slates  shall  be  a  party  ;  because  in  .cases  in  which  the 
whole  people  are  interested,  it  would  not  be  equal  or  wise  to  let  any  one  state 
decide  and  measure  out  the  justice  due  to  others :  7th :  to  controversies  be- 
tween two  or  more  states;  because  domestic  tranquillity  requires  that  the 
contention  of  states  should  be  peaceably  terminated  by  a  common  judicatory ; 
and,  because,  in  a  free  country  justice  ought  not  to  depend  on  the  will,  of  either 
of  the  litigants:  8th  :  to  controversies  between  a  stave  and  citizens  of  another 
state;  because  in  case  a  state  (that  is  all  the  citizens  of  it)  has  demands 
against  some  citizens  of  another  state,  it  is  better  that  they  should  prosecute 
their  demands  in  a  national  court  than  in  a  court  of  the  state  to  which  those 
citizens  belong;  the  d  inger  of  irritation  and  criminations,  arising  from  appre- 
hensions and  suspicions  of  partiality,  being  thereby  obviated.  Because,  in 
cases  where  somecitizens  of  one  state  have  demands  against  all  the  citizens  of 
another  state,  the  cause  of  liberty  and  the  rights  of  men  forbid  that  the  latter 
should  be  the  sole  judges  of  the  justice  due  to  the  latter  ;  and  true  republican 


196  THE   JUDICIAL    POWER. 

"Cases,in  law  and  equity,  arising  under  this  Consti- 
tution, the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority  " 
include  all  subject-matters  of  litigation,  civil  or  crim- 
inal, whose  determination  requires  the  application  or 
construction  of  the  Constitution,  laws,  or  treaties  of  the 
United  States.1  "  Cases  affecting  ambassadors,  other 
public  ministers,  and  consuls"  are  cases  to  which  such 
officers  are  parties,  or  so  far  privies,  that  the  determi- 
nation thereof  will  conclude  their  rights.2  "  Cases  of 
admiralty  and  maritime  jurisdiction  "  comprehend  liti- 

government  requires  that  free  and  equal  citizens  should  have  free,  fair,  and 
equal  justice  :  9th  :  to  controversies  between  citizens  of  the  same  state,  claim- 
ing lands  under  grants  of  different  states;  because,  as  the  rights  of  the  two 
states  to  grant  the  land  are  drawn  into  question,  neither  of  the  two  states  ought 
to  decide  the  controversy  :  10th  :  to  controversies  between  a  state  or  the  citi- 
zens thereof,  and  foreign  states,  citizens,  or  subjects  ;  because,  as  every  naiion 
is  responsible  for  the  conduct  of  iis  citizens  toward  other  nations,  all  questions 
touching  the  justice  due  to  foreign  nations  or  people,  ought  to  be  ascertained 
by,  and  depend  en,  national  authority." 

1  Waite,  C.  J.,  said  in  Starin  v.  New  York,  115  U.  S.  257,  "the  character  of 
a  case  is   determined  by  the  questions  involved.     If  from  the  questions   it 
appears  that  some  title,  right,  privilege,  or  immunity  on  which  the  recovery 
depends   will  be  defeated  by  one  construction  of  the  Constitution,  or  of  a 
law  of  the  United  States,  or  sustained  by  the  opposite  construction,  the  case 
will  be  one  arising  under  the  Constitution   or  laws  of  the  United  States, 
within  the  meaning  of  that  term      .     .     .     otherwise  not."     In  Tennessee  v. 
Davis,  100  U.  S.  264,  Strong,  J.,  said,  "a  case  arising  under  the  Constitution 
and  laws  of  the  United  States  may  as  well  arise  in  a  criminal  prosecution  as 
in  a  civil  suit.     .     .     .     It  is  not  merely  one  where  a  party  conies  into  court 
to  demand  something  conferred  upon  him  by  the  Constitution  or  by  a  law  or 
treaty.     A  case  consists  of  the  right  of  one  party  as  well  as  the  other,  and  may 
truly  be  said  to  arise  under  the  Constitution  or  a  law  or  a  treaty  of  the  United 
States,  whenever  its  correct  decision  depends  upon  the  construction  of  either. 
Cases  arising  under  the  laws  of  the  United  States  are  such  as  grow  out  of  the 
legislation  of  Congress,  whenever  they  constitute  the  right  or  privilege,  or 
claim,  or  protection,  or  defense  of  the  party,  in  whole  or  in  part,  by  whom 
they  are  asserted."     See  also  Cohens  v.  Virginia,  6  Wheat.  264,  379 ;  Osborn  v. 
Bank  of  the  U.  S.,  9  id.  737,  824  ;  The  Mayor  v.  Cooper,  6  Wall.  247,  252  ; 
Gold  W.  &  W.  Co.  v.  Keyes,  96  U.  S    199,  201 ;  E.  E.  Co.  v.  Mississippi,  102 
id.  135,  140;  Ames  v.  Kansas,  111  id.  449,  462;  K.  P.  Co,  v.  A.  T.  &  S.  F.  R. 
R,  112  id.  414,  416  ;  P.  Savings  Co.  v.  Ford,  114  id.  635,  641 ;  P.  E.  Eemoval 
Cases,  115  id.  1,  11. 

2  U.  S.  v.  Ortega,  11  Wheat.  467 ;  Blyew  v.  U.  S.,  13  Wall.  581. 


FEDERAL   JURISDICTION.  197 

gated  cases  with  regard  to  acts  done  and  rights  created, 
or  contracts  to  be  performed,  upon  the  high  seas  or  in- 
land navigable  waters,  or  with  regard  to  contracts  for 
the  transportation  of  passengers  or  goods  on  the  high 
seas  or  on  navigable  waters  between  different  states.1 
The  phrase  "  controversies  to  which  the  United  States 
shall  be  a  party"  requires  no  elucidation  further  than 
to  note  that  the  United  States,  as  a  sovereignty,  cannot 
be  sued  without  its  own  consent,2  and  the  constitutional 
provision  does  not  impose  upon  Congress  any  duty  to 
constitute  tribunals  to  take  cognizance  of  claims  against 
the  United  States. 

The  phrase,  controversies  "between  citizens  of  differ- 
ent states,"  vests  in  the  courts  of  the  United  States 
jurisdiction  over  all  proceedings  in  personam,  between 
sush  parties.  As  Marshall,  C.  J.,  said  in  Cohens  v. 
Virginia,3  "if  these  be  the  parties,  it  is  entirely  unim- 
portant what  may  be  the  subject  of  controversy.  Be 
it  what  it  may,  these  parties  have  a  constitutional  right 
to  come  into  the  courts  of  the  Union  ;"  and  as  Field, 
J.,  said  in  Gaines  v.  Fuentes,4  "it  rests  entirely  with 
Congress  to  determine  at  what  time  the  power  may  be 
invoked,  and  upon  what  conditions."5  But  that  jurisdic- 
tion which  is  dependent  on  the  character  of  the  parties 
does  not  include  proceedings  in  rem,  or  quasi  in  rem, 
such  as  questions  of  probate,6  or  actions  for  divorce.7 

1  Supra  pp.  45, 46,  The  Genessee  Chief  v.  Fitzhugh,  12  How.  443;  The  Daniel 
Ball,  10  Wall.  557;  The  Montello,  20  id.  430;  Waring  v.  Clarke,  5  How.  441 ; 
Allen  v.  Newberry,  21  id.  244;  Magnire  v.  Card,  ibid.  248 ;  The  Belfast,  7  Wall. 
624;  The  Eagle,  8  id.  15;  Fretz  v.  Bull,  12  How.  466;  The'  Moses  Taylor, 
4  Wall.  411  ;  The  Hine  v.  Trevor,  ibid.  555 ;  N.  J.  Navigation  Co.  v.  Merchants' 
Bank,  6  How.  34 1 ;  Hobart  v  Drogan,  10  Pet.  108 ;  The  St.  Lawrence,  1  Bl.  522. 

2  McElrath  r.  U.  S.,  102  U.  S.  426. 

3  6  Wheat.  378.  «  92  U.  S.  18. 

5  See  also  Payne  v.  Hook,  7  Wall.  425 ;  Hyde  v.  Stone,  20  How.  170,  175  ; 
Railway  Co.  v.  Whitton,  13  Wall.  270,  287;  Dennick  v.  R.  R.  Co.,  103  U.  S. 
11 ;  Ex  parte  Boyd,  105  id.  647  ;  Boom  Co.  v.  Patterson,  98  id.  403. 

6  Fouvergne  v.  New  Orleans,  18  How.  470.    7  Barber  v.  Barber,  21  How.  582. 


198  THE    JUDICIAL    POWER. 

The  phrases  "  controversies  between  two  or  more 
states  .  .  .  between  citizens  of  the  same  state  claim- 
ing lands  under  grants  of  different  states  "  seem  to  be 
unambiguous.  The  cases  of  suits  between  states  have 
been  mainly  controversies  as  to  conflicting  boun- 
daries.1 It  has,  however,  been  held  that  as  the  United 
States  "has  no  power  to  impose  on  a  state  officer,  as  such, 
any  duty  whatever,  and  compel  him  to  perform  it,"  a  state 
cannot,  by  a  suit  against  the  governor  of  another  state, 
compel  the  performance  of  a  "  duty"  by  an  officer  of  that 
other  state,  for  "there  is  no  power  delegated  to  the  gen- 
eral government,  either  through  the  judicial  department, 
or  any  other  department,  to  use  any  coercive  means  to 
compel  him." 2  It  has  also  been  held  that  since  the 
adoption  of  the  XI  Amendment  a  court  of  the  United 
States  cannot  entertain  jurisdiction  of  a  cause,  in  which 
one  state  seeks  relief  on  behalf  of  its  citizens,  against 
another  state  in  a  matter  in  which  the  plaintiff  state  has 
no  corporate  interest,  as,  for  instance,  when  the  plaintiff 
state  has  assumed  the  collection  of  a  debt  due  to  one  of 
its  citizens  by  the  defendant  state.3  An  Indian  tribe 
within  the  United  States  being  a  "  domestic  dependent 
nation,"  and  not  a  state,  cannot  bring  suit  against  a  state 
under  this  clause  of  the  Constitution.4  But  the  other 
clauses  of  the  constitutional  provision,  those  giving  jur- 
isdiction to  the  courts  of  the  UnitaJ  States  in  "contro- 
versies .  .  .  between  a  state  and  citizens  of  another 
state  .  .  .  and  between  a  state  or  the  citizens 
thereof,  and  foreign  states,  citizens,  or  subjects/' 
were,  at  an  early  day  in  the  history  of  the  government, 

1  Rhode  Island  v.  Massachusetts,  1 2  Pet.  724;  Missouri  v.  Iowa,  7  How.  660; 
Florida  v.  Georgia,  17  id.  478;  Alabama  v.  Georgia,  23  id.  505;  Virginia  v. 
West  Virginia,  11  Wall.  39. 

2  Kentucky  v.  Dennisnn,  24  How.  66. 

3  New  Hampshire  v.  Louisiana   108  U.  S.  76. 

4  The  Cherokee  Nation  v.  Georgia,  5  Pet.  1. 


FEDERAL   JURISDICTION.  199 

the  subject  of  much  controversy.  No  one  has  ever 
doubted  the  jurisdiction  in  causes  in  which  a  state1 
was  plaintiff,  but  the  jurisdiction  was  earnestly  con- 
tested in  cases  in  which  a  state  was  defendant  and 
citizens  of  other  states  were  plaintiffs.  In  17U2  the 
Supreme  Court  of  the  United  States,  in  Chisholm  v. 
Georgia,2  the  cause  being  an  action  of  assumpsit 
brought  by  •  a  citizen  of  South  Carolina  against  the 
state  of  Georgia,  sustained  the  original  jurisdiction  of 
the  Supreme  Court  in  suits  by  a  citizen  of  one  state 
ag.iinst  another  state.  In  consequence  of  that  judg- 
ment, and  for  the  purpose  of  relieving  the  states  from 
liability  to  suits  to  enforce  the  payment  of  their  obliga- 
tions,3 the  XI  Article  of  the  Amendments  to  the  Con- 
stitution was  adopted.4  As  the  courts  of  the  United 
States  are  courts  of  limited  jurisdiction,  the  record 
must  show  affirmatively  that  the  cause  is  necessarily  of 
federal  cognizance,  by  reason  of  either  the  subject- 
nutter  of  litigation,5  or  the  character  of  the  parties.6 
The  jurisdiction  of  the  courts  of  the  United  States  is, 
in  its  character,  either  civil  or  criminal,  and,  in  its 
exercise,  either  exclusive  of,  or  concurrent  with,  the 
jurisdiction  of  the  courts  of  the  states,  and  either 
original,  or  appellate.  In  causes  of  civil  cognizance, 
where  the  federal  court  has  acquired  original  jurisdic- 
tion under  the  Constitution  and  laws  of  the  United 
States,  it  may  protect  rights  and  administer  remedies 

1  Texas  v.  White,  7  Wall.  700.  3  Cohen  v.  Virginia,  6  Wheat.  40C. 

-  '2  Dall.  419.  *  Infra,  sec.  100. 

5  Lawler  v.  Walker,  14  How.  149 ;  Mills  v.  Brown,  16  Pet.  525  ;  R.  R.  v. 
Rock,  4  Wall.  177,  180 ;  Osborn  v.  Bank  of  the  United  States,  9  Wheat.  738, 
823. 

6  Dred  Scott  v.  Sandford,  19  How.  393;  Breithaupt  v.  Bank  of  Georgia,  1 
Pet.  238  ;  Godfrey  r.  Terry,  97  U.  S  171  ;  Hornthall  v.  The  Collector,  9  Wall. 
560 ;  Grace  v.  American  In«.  Co.,  109  U.  S.  278,  283 ;  Robertson  v.  Cease,  97 
id.  646 ;  Brown  v.  Keene,  8  Pet.  115 ;  Bingham  v.  Cabot,  3  Dall.  382 ;  Capron 
v.  Van  Noorden,  2  Cr.  126. 


200  THE   JUDICIAL    POWEK. 

not  only  under  the  Constitution,  laws,  and  treaties  of 
the  United  States,  but  also  under  the  common  law,  as 
adopted  by  the  state  within  which  the  court  sits,1  the 
principles  of  equitable.jurisprudence,  "as  distinguished 
and  defined  in  that  country  from  whence  we  derive  our 
knowledge  of  those  principles," 2  and  the  statutes  of  the 
state.3  In  causes  of  criminal  cognizance,  the  original 
jurisdiction  of  the  federal  courts  is  limited  in  two 
respects.  In  the  first  place,  those  courts  cannot  take 
cognizance  of  an  act  alleged  to  be  criminal,  which  has 
not  been  declared  to  be  such  by  an  act  of  Congress.4 
In  the  second  place,  Congress  cannot,  under  the  Consti- 
tution, declare  an  act  to  be  criminal,  unless,  as  Field, 
J.,  said,5  that  act  has  "some  relation  to  the  execution 
of  a  power  of  Congress,  or  to  some  matter  within  the 
jurisdiction  of  the  United  States."  Thus,  a  murder 
committed  on  board  a  vessel  of  the  navy  of  the  United 
States,  while  at  anchor  in  navigable  waters  within  the 
jurisdiction  of  a  state,  is  not  cognizable  in  a  court  of  the 
United  States;6  Congress  cannot  make  it  a  misde- 
meanor to  sell  within  the  territory  of  a  state  illuminat- 
ing oil  inflammable  at  a  less  than  specified  tempera- 
ture;7 while  Congress  may  legislate  with  regard  to 
bankruptcy,  and  may  prohibit  and  declare  to  be  punish- 
able the  commission  of  a  fraud  in  contemplation  of 

1  Parsons  v.  Bedford,  3  Pet.  433 ;  Wheaton  v.  Peters,  8  id.  591 ;  Parrish  v, 
Ellis,  36  id.  451;  Ex  parte  Bollman  and  Swartwout,  4  Cr.  75. 

2  Robinson  v.  Campbell,  3  Wheaton  222 ;  Pennsylvania  v.  W.  &  B.  Bridge 
Co.,  13  How.  563;  Livingston  v.  Story,  9  Pet.  632;  Holland  v.  Challen,  110 
U.S.  15. 

3  Edwards  v.  Elliott,  21  Wall.  532 ;  The  Lottawanna,  ibid.  558 ;  C.  &  N.  W. 
By.  v.  Whitton,  13  id.  270  ;  Ex  parte  Gordon,  104  U.  S.  515;  Ex  parte  Ferry 
Co.,  ibid.  519. 

4  U.  S.  v.  Hudson,  7  Cr.  32 ;  U  S.  v.  Coolidge,  1  Wheat.  415 ;  Bush  v.  Ken- 
tucky, 107  U.  S.  110;  Sed  cf.  Teoaessee  ».  Davis,  100  U.  S.  257. 

5  U.  S.  v.  Fox,  95  U.  S.  570. 

6  U.  S.  Be  vans,  3  Wheat.  336. 

'  United  States  v.  DeWitt,  9  Wall.  41. 


THE    EXCLUSIVE    JURISDICTION.  201 

bankruptcy,  it  cannot  constitute  the  obtaining  of  goods 
on  false  pretences  without  intent  to  defraud,  but  not  in 
contemplation  of  bankruptcy,  to  be  an  offense  against 
the  United  States;1  Congress  cannot  by  statute  pro- 
vide for  the  punishment  of  state  election  officers  for 
wrongfully  refusing  to  receive  the  vote  of  a  qualified 
voter  at  an  election,  when  that  refusal  is  not  based 
upon  a  discrimination  against  the  voter  on  account  of 
his  ra.co,  colour,  or  previous  condition  of  servitude.2 
The  appellate  and  supervisory  jurisdiction  of  the 
c  mrts  of  the  United  States  over  the  courts  of  the  states 
in  causes  of  criminal  cognizance  is,  as  explained  in 
Saction  9-3,  exercisable  only  in  causes  wherein  there  has 
b33ii  denied  to  the  prisoner  a  right  secured  to  him  by 
the  Constitution  or  laws  of  the  United  States. 

92.  It  is  a  principle  of  constitutional  construction,  as 
stated  by  Marshall,  C.  J.,  in  Sturges  v.  Crowninshield,3 
that  "  wherever  the  terms  in  which  a  power  is  granted 
to  Congress,  or  the  nature  of  the  power  require  that  it 
should  be  exercised  exclusively  by  Congress,  the  sub- 
ject is  as  completely  taken  from  the  state  legislatures  as 
if  they  had  been  expressly  forbidden  to  act  on  it."4  In 
conformity  with  this  principle,  it  has  been  decided  in 
Martin  v.  Hunter's  Lessee,5  and  in  The  Moses  Taylor,6 
that  Congress  has  power  to  divest  the  courts  of  the 
states  of  jurisdiction  over  all  subject-matters  which  are 
included  within  the  constitutional  grant  of  judicial 
power  to  the  United  States,  or  whose  determination  by 

1  United  States  v.  Fox,  95  U.  S.  670. 

2  U.  S.  v.  Reese,  92  U.  S.  214;  U.  S.  v.  Cruikshank,  92  U.  S.  542. 

3  4  Wheat,  193. 

4  See  also  Houston  v.  Moore,  5  Wheat.  193 ;  Oilman  r.  Philadelphia,  3  Wall. 
730. 

6  1  Wheat.  304. 

c  Wall.  411.  See  also  Cohen  v.  Virginia,  6  Wheat.  314,  315,  325;  Slocnra 
v.  Mayberry,  2  id.  9 ;  Gelston  t .  Hoyt,  3  id.  246 ;  Waring  v.  Clarke,  5  How. 
451 ;  Skd.  cf.  Story's  Commentaries,  1 1072,  note  4. 


202  THE    JUDICIAL  POWER. 

the  judicial  power  of  the  United  States  is  necessary  to 
the  exercise  by  Congress  of  its  constitutional  power  of 
legislation,  and  where  Congress  has  expressed  its  will 
that,  as  to  any  particular  subject-matter  of  federal  cogni- 
zance the  jurisdiction  of  the  courts  of  the  United 
States  shall  be  exclusive,  the  courts  of  the  states 
cannot  take  cognizance  of  such  subject-matter.1 

1  In  Martin  v.  Hunter's  Lessee,  1  Wheat.  334,  Story,  J.,  referring  to  the 
constitutional  grant  of  judicial  power  to  the  United  States,  said :  "the  first 
clas-;  includes  cases  arising  under  the  Constitution,  laws,  and  treaties  of  the 
United  >S tat es ;  cases  affecting  ambassadors,  other  public  ministers,  and  con- 
suls and  cases  of  admiralty  and  maritime  jurisdiction.  In  this  class  the  ex- 
pression is,  that  the  judicial  power  shall  extend  to  all  cases;  but  in  the  subse- 
quent part  of  the  clause  which  embraces  all  the  other  cases  of  national  cogni- 
zance, and  forms  the  second  class,  the  word  'a//'  is  dropped  seemingly  ex 
iniwttria.  Here  the  judicial  authority  is  to  extend  to  controversies,  not  to  all 
controversies,  to  which  the  United  States  shall  be  a  party,  etc.  From  this 
difference  of  phraseology,  perhaps  a  difference  of  constitutional  intention  may, 
with  propriety,  be  inferred.  It  is  hardly  to  be  presumed  that  the  variation  in 
the  language  could  have  been  accidental.  It  must  have  been  the  result  of 
some  determinate  reason ;  and  it  is  not  very  difficult  to  find  a  reason  sufficient 
to  support  the  npparent  change  of  intention.  In  respect  to  the  first  class,  it 
may  well  have  been  the  intention  of  the  framers  of  the  Constitution  impera- 
tively to  extend  the  judicial  power  either  in  an  original  or  appellate  form  to 
all  cases;  and  in  the  latter  class  to  leave  it  to  Congress  to  qualify  the  jurisdic- 
tion, original  or  appellate,  in  such  manner  as  public  policy  might  dictate. 
The  vital  importance  of  all  the  cases  enumerated  in  the  first  class  to  the 
national  sovereignty  might  warrant  such  a  distinction.  In  the  first  place  as 
to  cases  arising  under  the  Constitution,  laws,  and  treaties  of  the  United  States. 
Here  the  state  courts  could  not  ordinarily  possess  a  direct  jurisdiction.  The 
jurisdiction  over  such  cases  could  not  exist  in  the  state  courts  previous  to  the 
adoption  of  the  Constitution,  and  it  could  not  afterwards  be  directly  conferred 
on  them  ;  for  the  Constitution  expressly  requires  the  judicial  power  to  be  vested 
in  courts  ordained  and  established  by  the  United  States.  This  class  of  cases 
would  embrace  civil  as  well  as  criminal  jurisdiction,  and  affect  not  only  our 
internal  policy,  but  our  foreign  relations.  It  would,  therefore,  be  perilous  to 
restrain  it  in  any  manner  whatsoever,  inasmuch  as  it  might  hazard  the  na- 
tional safety.  The  same  remarks  may  be  urged  as  to  cases  affecting  ambassa- 
dors, other  public  ministers,  and  consuls,  who  are  emphatically  placed  under 
the  guardianship  of  the  law  of  nations ;  and  as  to  cases  of  admiralty  and  mari- 
time jurisdiction,  the  admiralty  jurisdiction  embraces  all  questions  of  prize 
and  salvage,  in  the  correct  adjudication  of  which  foreign  nations  are  deeply 
interested ;  it  embraces  also  maritime  torts,  contracts,  and  offenses,  in 
•  which  the  principles  of  the  law  and  comity  of  nations  often  form  an  essential 
inquiry.  All  these  cases,  then,  enter  into  the  national  policy,  affect  the 


THE   EXCLUSIVE   JURISDICTION.  203 

Of  course,    the   Constitution,   having    granted    the 
power,  and  not  having  commanded  Congress  to  exercise 

national  rights,  and  may  compromise  the  national  sovereignty.  The  original, 
or  appellate,  jurisdiction  ought  not,  therefore,  to  be  restrained,  but  should  be 
commensurate  with  the  mischiefs  intended  to  be  remedied,  and,  of  course, 
should  extend  to  all  cases  whatsoever.  A  different  policy  might  well  be 
adopted  with  reference  to  the  second  class  of  cases;  for,  although  it  might  bo 
tit  tnat  the  judicial  power  should  extend  to  all  controversies  to  which  the 
United  States  should  be  a  party,  yet  this  power  might  not  have  been  impera- 
tively given,  lest  it  should  imply  a  right  to  take  cognizance  of  original  suits 
brought  against  the  United  States  as  defendants  in  their  own  courts.  It 
might  not  have  been  deemed  proper  to  submit  the  sovereignty  of  the  United 
States,  against  their  own  will,  to  judicial  cognizance,  either  to  enforce  rigitts 
or  to  prevent  wrongs ;  and  as  to  the  other  cases  of  the  second  class,  they 
might  well  be  left  to  be  exercised  under  the  exceptions  and  regulations  which 
Congress  might,  in  their  wisdom,  choose  to  apply.  It  is  also  worthy  of  re- 
mark, that  Congress  seems,  in  a  good  degree,  in  the  establishment  of  the 
} -resent  judicial  system,  to  have  adopted  this  distinction.  In  the  first  class  of 
cases,  the  jurisdiction  is  n  t  limited  except  by  the  subject-matter;  in  the 
second,  it  is  made  materially  to  depend  upon  the  value  in  controversy.  We 
do  not,  however,  profess  to  place  any  implicit  reliance  upon  the  distinction 
which  has  here  been  stated  and  endeavoured  to  be  illustrated.  .  .  .  At  all 
events,  whether  the  one  construction  or  the  other  prevail,  it  is  manifest  that 
the  judicial  power  of  the  United  States  is  unavoidably,  in  some  cases,  exclu- 
sive of  'ill  state  authority,  and  in  all  others,  may  be  made  so  at  the  election  of 
Congress.  No  part  of  the  criminal  jurisdiction  of  the  United  States  can,  con- 
si«tently  with  the  Constitution,  be  delegated  to  state  tribunals.  The  admiralty 
and  maritime  jurisdiction  is  of  the  same  exclusive  cognizance ;  and  it  can  only 
be  in  those  cases  where,  previous  to  the  Constitution,  state  tribunals  possessed 
jurisdiction  independent  of  national  authority,  that  they  can  now  constitu- 
tionally exercise  a  concurrent  jurisdiction.  Congress,  throughout  the  judicial 
act,  and  particularly  in  the  9th,  llth,  and  13th  sections,  have  legislated  upon 
the  supposition  that  in  all  the  cases  to  which  the  judicial  powers  of  the  United 
States  extended,  they  might  rightfully  vest  exclusive  jurisdiction  in  their  own 
courts."  In  The  Moses  Taylor  [4  Wall.  411],  Field,  J.,  in  the  judgment  of 
the  court,  quoted  the  constitutional  grant  of  judicial  power  to  the  United 
States,  and  said  [p. 428],  "how  far  this  judicial  power  is  exclusive,  or  may. 
by  the  legislation  of  Congress,  be  made  exclusive,  in  the  courts  of  the  United 
States,  has  been  much  discussed,  though  there  has  been  no  direct  adjudication 
upon  the  point;"  and  after  referring  to  the  judgment  of  Story.  J.,  in  Martin 
v.  Hunter's  Lessee,  he  added  [p.  429],  "we  agree  fully  with  this  conclusion. 
The  legislation  of  Congress  has  proceeded  upon  this  supposition.  The  Ju- 
diciary Act  of  1789,  in  its  distribution  of  jurisdiction  to  the  several  federal 
courts,  recognizes  and  is  framed  upon  the  theory  that,  in  all  cases,  to  which 
the  judicial  power  of  the  United  States  extends,  Congress  may  rightfully  vest 
exclusive  jurisdiction  in  the  federal  courts.  .  .  .  The  constitutionality  of 
these  provisions  cannot  be  seriously  questioned  and  is  of  frequent  recognition 


204  THE   JUDICIAL  POWER. 

it,  it  is  for  Congress  to  determine  when  and  to  what 
extent  it  will  exercise  it.  Therefore,  the  jurisdiction  of 
the  courts  of  the  United  States  within  the  limits  im- 
posed by  the  Constitution  is  either  exclusive  of,  or  con- 
current with,  that  of  the  courts  of  the  states,  as  Con- 
gress may,  from  time  to  time,  determine.1  As  the 
law  now  is,  the  jurisdiction  of  the  courts  of  the  United 
States  is  exclusive  of  that  of  the  states  in  cases  of 
crimes  and  offenses  cognizable  under  the  authority  of 
the  United  States ;  in  suits  for  penalties  and  forfeitures 
incurred  under  the  laws  of  the  United  States ;  in  civil 
causes  of  admiralty  and  maritime  jurisdiction,  saving 
to  suitors  in  all  cases  the  right  of  a  common  law 
remedy,  where  the  common  law  is  competent  to  give  it ; 
in  seizures  under  the  laws  of  the  United  States  on  land 
or  on  waters  not  within  admiralty  and  maritime  juris- 
diction;  in  cases  arising  under  the  patent  right  or  copy- 
right laws  of  the  United  States;  in  all  matters  and 
proceedings  in  bankruptcy  ;  in  all  controversies  of  a  civil 
nature,  where  a  state  is  a  party,  except  between  a  state 
and  its  citizens,  or  between  a  state  and  citizens  of  other 
states,  or  aliens ;  and  in  all  suits  or  proceedings  against 
ambassadors,  or  other  public  ministers,  or  their  domes- 
tics, or  domestic  servants,  or  against  consuls  or  vice- 
consuls.2 

93.  The  original  jurisdiction  of  the  courts  of  the 
United  States  is  exercised  in  some  cases  by  the  Supreme 
Court,  and,  in  other  cases,  by  the  inferior  courts.  As 

by  both  state  and  federal  courts."  In  Claflin  v.  Houseman,  93  U.  S.  136,  Brad- 
ley, J.,  said,  the  general  principle  is,  "that,  where  jurisdiction  maybe  con- 
ferred on  the  United  States  courts,  it  may  be  made  exclusive  where  not  so  by 
the  Constitution  itself;  but,  if  exclusive  jurisdiction  be  neither  express  nor 
implied,  the  state  courts  have  concurrent  jurisdiction  whenever,  by  their  own 
Constitution,  they  are  competent  to  take  it." 

1  Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  331,  333 ;  The  Moses  Taylor,  4 
Wall.  411,  429. 

*  Rev.  Stat.  Sec.  711. 


ORIGINAL   JURISDICTION.  205 

Johnson,  J.,  said  in  United  States  v.  Hudson,1  "  only 
the  Supreme  Court  possesses  jurisdiction  derived  im- 
mediately from  the  Constitution,  and  of  which  the  legis- 
lative power  cannot  deprive  it.  All  other  courts 
created  by  the  general  government  possess  no  jurisdic- 
tion bat  what  is  given  them  by  the  power  that  creates 
them,  and  can  be  vested  with  none  but  what  the 
power  ceded  to  the  general  government  will  authorize 
them  to  confer." 

The  original  jurisdiction  of  the  Supreme  Court  is  limi- 
ted by  the  Constitution  to  "  cases  affecting  ambassadors, 
other  public  ministers,  and  consuls,  and  those  in  which  a 
state  shall  be  a  party."  Congress  cannot  confer  upon  the 
Supreme  Court  any  original  jurisdiction  other  than  that 
so  conferred  by  the  express  terms  of  the  Constitution.2 
Whether  or  not  Congress  can  authorize  other  courts  of 
the  United  States  to  exercise  concurrent  original  juris- 
diction in  the  cases,  original  jurisdiction  over  which  is 
vested  by  the  Constitution  in  the  Supreme  Court,  was 
for  a  long  time  an  unsettled  question.  In  U.  S.  v.  Or- 
tega,3 the  question  was  raised,  but  not  decided,  but  in 
Bors  v.  Preston,4  it  was  determined,  that  the  Congress 
might  confer  a  concurrent  original  jurisdiction  upon  the 
circuit  courts  of  the  United  States  in  actions  against 
consuls  of  foreign  states.5  The  original  jurisdiction  of 
the  courts  of  the  United  States  concurrent  with  that  of 
the  state  courts,  is  regulated  by  the  acts  of  Congress.6 

1  7  Cr.  32.  3  11  Wheat.  467. 

2  Marbury  r.  Madison,  1  Cr.  137.  4  111  U.  S.  252. 

5  Rev.  Stat.,  sec,  687.     See,  also,  Ames  v.  Kansas,  111  U.  S.  449.     Sed.  cj. 
Curtis's  Jurisdiction  of  the  Courts  of  the  U.  S.,  p.  10. 

6  Rev.  Stat.  U.  S.,  Sections  563,620,  and  711.     The  Act  of  3  March,  1887, 
declares  that  "  the  Circuit  Courts  of  the  United  States  shall  have  original 
cognizance,  concurrent  with  the  courts  of  the  several  states,  of  all  suits  of  a 
civil  nature,  at  common  law  or  in  equity,  where  the  matter  in  dispute  exceeds, 
exclusive  of  interest  and  costs,  the  sum  or  value  of  $2,000,  and  arising  under 
the  Constitution  or  laws  of  the  United  States,  or  treaties  made,  or  which  shall 


2G6  THE   JUDICIAL   POTHER. 

94.  The  removal  of  civil  causes  from  the  courts  of 
the  states  to  the  courts  of  the  United  States  is  now 
regulated  by  the  Act  of  3  March,  1887.1 

be  made,  under  their  authority,  or  in  which  controversary  the  United  States  are 
plaintiffs  or  petitioners,  or  in  which  there  shall  be  a  controversary  between  citi- 
zens of  different  states,  in  which  the  matter  in  dispute  exceeds  exclusive  of 
interest  and  costs,  the  sum  or  value  aforesaid,  or  a  controversary  between  citi- 
zens of  the  same  state,  claiming  land  under  grants  from  different  states,  or  a 
controversary  between  citizens  of  a  state  and  foreign  states,  citizens,  or  subjects 
in  which  the  matter  in  dispute  exceeds,  exclusive  of  interest  and  costs,  the 
sum  or  value  aforesaid,  .  .  .  and  no  civil  suit  shall  be  brought  before  either 
of  said  courts  against  any  person  by  any  original  process  of  proceeding  in  any 
other  district  than  that  whereof  he  is  an  inhabitant;  but  where  the  jurisdic- 
tion is  founded  only  on  the  fact  that  the  action  is  between  citizens  of  differ- 
ent states,  suit  shall  be  brought  only  in  the  district  of  the  residence  of  either 
the  plaintiff' or  the  defendant ;  nor  shall  auy  Circuit  or  District  Court  have  cog- 
nizance of  any  suit  except  upon  foreign  bills  of  exchange,  to  recover  the  con- 
tents of  any  promissory  note  or  other  chose  in  action  in  favour  of  any  assignee, 
or  of  any  subsequent  holder  of  such  instrument  be  payable  to  bearer,  and 
be  not  made  by  any  corporation,  unless  such  suit  might  have  been  prosecu- 
ted in  such  court  to  recover  the  said  contents  if  no  assignment  or  transfer  had 
been  made."  Section  3  of  the  act  subjects  to  liability  to  suit  receivers  ap- 
pointed by  a-iy  court  of  the  United  States.  Section  4  of  the  act  declares  na- 
tional banking  associations  to  be,  for  purposes  of  jurisdiction  citizens  of  the 
states  in  which  they  are  located,  and  provides  that  the  federal  courts  shall  not 
have,  in  cases  brought  by  such  associations,  any  ''jurisdiction  other  than  such 
as  they  would  have  in  cases  between  individual  citizens  of  the  same  state," 
saving  the  federal  jurisdiction  ''in  cases  commenced  by  the  United  States, 
or  by  any  officer  thereof,  or  cases  for  winding  up  the  affairs  of  any  such  bank  " 
1  That  act  declares,  "  Sec.  2,  that  any  suit  of  a  civil  nature,  at  law  or  in 
equity,  arising  under  the  Constitution  or  laws  of  the  United  Sta  es,  or  treaties 
made,  or  which  shall  be  made,  under  their  authority,  of  which  the  C  rcuit 
Courts  of  the  United  States  are  given  original  jurisdiction  by  the  preceding 
section,  which  may  now  be  pending,  or  which  may  hereafter  be  brought,  in 
any  state  court,  may  be  removed  by  the  defendant  or  defendants  therein  to 
the  Circuit  rourt  of  the  United  States  for  the  proper  district  any  other  suit 
of  acivil  nature,  at  law  or  in  equity,  of  which  the  Circuit  Courts  of  the  United 
States  are  given  jurisdiction  by  the  preceding  section,  and  which  are  now 
pending,  or  which  may  hereafter  be  brought,  in  any  state  court,  may  be  re- 
moved into  the  Circuit  Court  of  the  United  States  for  the  proper  district,  by 
the  defendant  or  defendants  therein  being  non-residents  of  that  state ;  and 
when  in  any  suit  mentioned  in  this  section  there  shall  be  a  controversy  which 
is  wholly  between  citizens  of  different  states,  and  which  can  be  fully  deter- 
mined as  between  them,  then  either  one  or  more  of  the  defendants  actually  in- 
terested in  such  controversy  may  remove  said  suit  into  the  Circuit  Court  of 
the  United  States  for  the  proper  district..  And  where  a  suit  is  now  pending, 
or  may  be  hereafter  brought,  in  any  state  court,  in  which  there  is  a  contro- 


CONCURRENT  JURISDICTION.  207 

versy  between  a  citizen  of  the  state  in  which  the  suit  is  brought  and  a  citizen 
of  another  state,  any  defendant,  being  such  citizen  of  another  state,  may  re- 
move such  suit  into  the  Circuit  Court  of  the  United  States  for  the  proper 
district,  at  any  time  before  the  trial  thereof,  when  it  shall  be  made  to  appear 
to  said  Circuit  Court  that  from  prejudice  or  local  influence  he  will  not  be  able 
to  obtain  justice  in  such  state  court,  or  in  any  other  state  court  to  which  the 
said  defendant  may,  under  the  laws  of  the  state,  have  the  right,  on  account  of 
such  prejudice  or  local  influence,  to  remove  said  cause:  provided,  that  if  it 
further  appear  that  said  suit  can  be  fully  and  justly  determined  as  to  the  other 
defendants  in  the  state  court,  without  being  affected  by  such  prejudice  or  local 
influence,  and  that  no  party  to  the  suit  will  be  prejudiced  by  a  separation  of 
the  parties,  said  Circuit  Court  may  direct  the  suit  to  be  remanded,  so  far  as 
relates  to  such  other  defendants,  to  the  state  court,  to  be  proceeded  with 
therein.  'At  any  time  before  the  trial  of  any  suit  which  is  now  pending  in 
any  Circuit  Court,  or  may  hereafter  be  entered  therein,  and  which  has  been 
removed  to  said  court  from  a  state  court  on  the  affidavit  of  any  party  plaintiff', 
tint  he  hal  reason  to  believe  and  did  believe  that,  from  prejudice  or  local 
influence,  he  was  unable  to  obtain  justice  in  said  state  court,  the  Circuit  Court 
shall,  on  application  of  the  other  party,  examine  into  the  truth  of  said 
affidavit  and  the  grounds  thereof,  and,  unless  it  shall  appear  to  the  satisfaction 
of  said  court  that  said  party  will  not  be  able  to  obtain  justice  in  such  state 
court,  it  shall  cause  the  same  to  be  remanded  thereto.'  Whenever  any  cause 
shall  be  removed  from  any  state  court  into  any  Circuit  Court  of  the  United 
States,  and  the  Circuit  Court  shall  decide  that  the  cause  was  improperly  re- 
moved, and  order  the  same  to  be  remanded  to  the  state  court  from  whence  it 
came,  such  remand  shall  be  immediately  carried  into  execution,  and  no  appeal 
or  writ  of  error  from  the  decision  of  the  Circuit  Court  so  remanding  such  cause 
shall  be  allowed." 

"  Sec.  8.  That  whenever  any  party  entitled  to  remove  any  suit  mentioned 
in  the  next  preceding  section,  except  in  such  cases  as  are  provided  for  in  the 
last  clause  of  said  section,  may  desire  to  remove  such  suit  from  a  state  court 
to  the  Circuit  Court  of  the  United  States,  he  may  make  and  file  a  petition  in 
such  suit  in  such  state  court  at  the  time,  or  any  time  before  the  defendant  is 
required  by  the  laws  of  the  state  or  the  rule  of  the  state  court  in  which  such 
suit  is  brought,  to  answer  or  plead  to  the  declaration  or  complaint  of  the 
plaintiff,  for  the  removal  of  such  suit  into  the  Circuit  Court  to  be  held  in  the 
district  where  such  suit  is  pending,  and  shall  make  and  file  therewith  a  bond, 
with  good  and  sufficient  surety,  for  his  or  their  entering  in  such  Circuit  Court, 
on  the  first  day  of  its  then  next  session,  a  copy  of  the  record  in  such  suit,  and 
for  paying  all  costs  that  maybe  awarded  by  the  said  Circuit  Court  it'  said 
court  shall  hold  that  such  suit  was  wrongfully  or  improperly  removed  theieto, 
and  also  for  their  appearing  and  entering  special  bail  in  such  suit  if  special 
bail  was  originally  requisite  therein.  It  shall  then  be  the  duty  of  the  state 
court  to  accept  said  petition  and  bond,  and  proceed  no  further  in  such  suit,  and 
the  said  copy  being  entered  as  aforesaid  in  said  Circuit  Court  of  the  United 
States,  the  cause  shall  then  proceed  in  the  same  manner  as  if  it  had  been  ori- 
ginally commenced  in  the  said  Circuit  Court;  and  if,  in  any  action  com- 
menced in  a  state  court,  the  title  of  land  be  concerned,  and  the  parties  are 
citizens  of  the  same  state,  and  the  matter  in  dispute  exceed  the  sum  or  value 


208  THE   JUDICIAL    POWER. 

The  removal  of  causes  of  criminal  cognizance  is  like- 
wise regulated  by  statute.1 

95.  As  the  Constitution  has  declared,  that  in  all 
cases,  other  than  those  in  which  original  jurisdiction 
has  been  by  its  terms  vested  in  the  Supreme  Court', 
that  court  "shall  have  appellate  jurisdiction,  both  as  to 
law  and  fact,  with  such  exceptions  and  under  such 
regulations  as  the  Congress  shall  make,"  Congress  may 
define  and  limit  the  appellate  jurisdiction  of  the 
Supreme  Court,2  but  the  Supreme  Court  cannot  be 

of  $2,000,  exclusive  of  interest  and  costs,  the  sum  or  value  being  made  to 
appear,  one  or  more  of  the  plaintiffs  or  defendants,  before  the  trial,  may  state 
to  the  court,  and  make  affidavit  if  the  court  require  it,  that  he  or  they 
claim  and  shall  rely  upon  a  right  or  title  to  the  Lmd  under  a  grant  from  a  state, 
and  produce  t  >e  original  grant,  or  an  exemplification  of  it,  except  where  the 
loss  of  public  records  shall  put  it  out  of  his  or  their  power,  and  shall  move 
that  any  one  or  more  of  the  adverse  party  inform  the  court  whether  he  or  they 
claim  a  right  or  title  to  the  land  under  a  grant  from  some  other  state,  the 
party  or  parties  so  required  shall  give  such  information,  or  otherwise  not  be 
allowed  to  plead  such  grant,  or  give  it  in  evidence  upon  the  trial  ;  and  if  he 
or  they  inform  that  he  or  they  do  claim  under  such  grant,  any  one  or  more 
of  the  party  moving  for  such  information  may  then,  on  petition  and  bond,  as 
hereinbefore  mentioned  in  this  act,  remove  the  cause  for  trial  to  the  Circuit 
Court  of  the  United  States  next  to  be  holden  in  such  district;  and  any  one  of 
either  party  removing  the  cause  shall  not  be  allowed  to  plead  or  give  evidence 
of  any  other  title  than  that  by  him  or  them  stated  as  aforesaid  as  the  ground 
of  his  or  their  claim."  The  Act  of  i887  is,  indeed,  a  legal  curiosity. 

1  Kev.  Stat.,  sees.  641  and  642.  The  Act  of  3  March,  1887,  declares:  Sec.  5. 
That  nothing  in  this  act  shall  be  held,  deemed  or  construed  to  repeal  or 
affect  any  jurisdiction  or  right  mentioned  either  in  sections  641,  or  in  642,  or 
in  643,  or  in  722,  or  in  Title  24  of  the  Revised  Statutes  of  the  United  States, 
or  mentioned  in  Section  8  of  the  act  of  Congress  of  which  this  act  is  an 
amendment,  or   in  the  act  of   Congress,  approved  March  1,  1875,  entitled 
"An  act  to  protect  all  citizens  in  their  civil  or  legal  rights."     Sec.  6.  That  the 
last  paragraph  of  section  5  of  the  act  of  Congress,  approved  March  3,  1875, 
entitled  "An  act  to  determine  the  jurisdiction  of  Circuit  Courts  of  the  United 
States,  and  to  regulate  the  removal  of  causes  from  state  courts,  and  for  other 
purposes,"  and  section  640  of  the  Revised  Statutes  and  all  laws  and  parts  of  laws 
in  conflict  with  the  provisions  of  this  act,  be  and  the  same  are  hereby  repealed. 
Provided,  That  this  act  shall  not  affect  the  jurisdiction  over  or  disposition  of 
any  suit  removed  from  the  court  of  any  state,  or  suit  commenced  in  any  court 
of  the  United  States,  before  the  passage  hereof,  except  as  otherwise  expressly 
provided  in  this  act. 

2  Wiscart  v.  Dauchy,  3  Dall.  321 ;  Durosseau  v.  U.  S.,  6  Cr.  307,  314;  The 
Francis  Wright,  105  U.  S.  381. 


SUPERVISORY    JURISDICTION.  209 

required  to  review  the  actions  of  officers  of  the  United 
States  under  legislative  or  executive  references.1  In 
the  exercise  of  its  appellate  jurisdiction  the  Supreme 
Court  of  the  United  States  may  review  the  final  judg- 
ments and  decrees  of  the  inferior  courts  of  the  United 
States  under  the  restrictions  stated  in  the  acts  of  Con- 
gress,2 and  it  may  review  the  final  judgments  or  decrees 
of  the  courts  of  last  resort  of  the  states  in  causes  either 
civil  or  criminal,  "  where  is  drawn  in  question  the 
validity  of  a  statute  of,  or  an  authority  exercised  under, 
any  state,  on  the  ground  of  their  being  repugnant  to 
the  Constitution,  treaties,  or  laws  of  the  United  States, 
and  the  decision  is  in  favour  of  their  validity;  or  where 
any  title,  right,  privilege,  or  immunity  is  claimed  under 
the  Constitution,  or  any  treaty  or  statute  of,  or  commis- 
sion held  or  authority  exercised  under>  the  United 
S:ates,  and  the  decision  is  against  the  title,  right,  priv- 
ilege, or  immunity  specially  set  up  or  claimed  by  either 
party,  under  such  Constitution,  treaty,  statute,  commis- 
sion, or  authority."3  The  courts  of  the  United  States 
also  exercise  a  supervisory  jurisdiction  over  the  courts 
of  the  states  by  a  removal  from  a  court  of  a  state  to  a 
federal  court  of  a  cause,  either  civil  or  criminal,  de- 
pending but  not  yet  finally  adjudicated  in  the  state 
court,4  or  by  the  issue  of  a  writ  of  habeas  corpus  in  cases 
of  a  restraint  of  personal  liberty  under  process  of  a 
court  of  a  state,  void  by  reason  of  the  offense  with 

1  Haybnrn's  Case,  2  Dall.  400;  U.  S.  v.  Ferrera,  13  How.  40;  Hunt  v. 
Pallas,  4  How.  589;  McNulty  v.  Batty.   10  id.  72;  Gordon  v.  U.  S.,  2  Wall. 
561. 

2  Rev.  Stat.  Sec.  690  et  seq. 

3  Rev.  Stat.  709.     See  also  Cohens  r.  Virginia,  6  Wheat.  264;  Worcester  v. 
Georgia,  6  Pet.  515  ;  Twitchell  v.  Pennsylvania,  7  Wall.  321 ;  Spies  v.  Illinois, 
123  U.  S.  131. 

4  West  v.  Aurora  City,  6  Wall.  139  ;  Ames  v.  Kansas,  111  U.  S.  449;  Phila- 
delphia v.  The  Collector,  5  Wall.  720;  The  Mayor  v.  Cooper,  6  id.  247    Ten- 
nessee v.  Davis,  100  U.  S.  257 ;  The  Removal  Cases,  ibid.  457. 

14 


210  THE  JUDICIAL   POWER. 

which  the  prisoner  is  charged  being  a  matter  of  federal, 
and  not  of  state,  cognizance,  or  by  reason  of  the  re- 
straint of  a  prisoner  in  violation  of  the  Constitution, 
or  of  any  treaty,  or  law  of  the  United  States.1  The 
right  of  appeal,  or  of  removal,  or  to  the  writ  of 
habeas  corpus  is  in  any  case  dependent,  not  only  on  the 
federal  character  of  the  question  involved,  or  the  right 
of  the  party  to  sue  in  the  federal  court,  but  also  on  the 
terms  of  the  act  of  Congress  authorizing  the  exercise 
by  the  court  of  the  United  States  of  its  supervisory 
jurisdiction  in  the  particular  case.  The  Constitution 
does  not  expressly  authorize  the  removal  of  causes  of 
federal  cognizance  from  the  courts  of  the  states  to  the 
courts  of  the  United  States  before  final  judgment,  nor 
does  it  expressly  authorize  the  review  of  such  causes  in 
the  Supreme  Court  of  the  United  States  after  the  entry 
of  final  judgment  in  a  court  of  a  state,  nor  does  it  ex- 
pressly authorize  the  release  by  a  court  of  the  United 
States  after  a  hearing  on  habeas  corpus  of  a  prisoner 
indicted  in  a  state  court  for  doing  that  which  under  the 
Constitution  and  laws  of  the  United  States  he  may 
rightfully  do,  but  the  right  of  removal,  the  right  of 
appeal,  and  the  right  to  a  discharge  after  hearing  on 
habeas  corpus,  alike  result  from  the  constitutional  decla- 

1  Harlan,  J.,  said,  in  Ex parte  Royall,  117  U.  S.  2o2,  if  "a  person  is  in  cus- 
tody, under  process  from  a  state  court  of  original  jurisdiction,  for  an  alleged 
offense  against  the  laws  of  such  state,  and  it  is  claimed  that  he  is  restrained 
of  his  liberty  in  violation  of  the  Constitution  of  the  United  States,  the 
Circuit  Court  [of  the  U.  S.]  has  a  discretion,  whether  it  will  discharge  him 
upon  a  habeas  corpus  in  advance  of  his  trial  in  the  court  in  which  he  is  in- 
dicted; that  discretion,  however,  to  be  subordinated  to  any  special  circum- 
stance requiring  immediate  action.  When  the  state  court  shall  have  finally 
acted  upon  the  case,  the  Circuit  Court  has  still  a  discretion  whether,  under 
all  the  circumstances  as  then  existing,  the  accused,  if  convicted,  shall  be  put  to 
his  writ  of  error  from  the  highest  court  of  the  state,  or  whether  it  will  pro- 
ceed by  writ  of  habeas  corpus,  summarily  to  determine  whether  the  petitioner 
is  restrained  of  his  liberty  in  violation  of  the  Constitution  of  the  United 
States."  See  also  Ex  parte  Fonda,  117  U.  S.  516.  Kev.  Stat.  Sec.  751, 
et  seq. 


A   JUDICIAL   CASE.  211 

ration  of  the  supremacy  of  the  Constitution  and  laws  of 
the  United  States. 

96.  Whatever  be  the  form  in  which  the  jurisdiction 
of  the  courts  of  the  United  States  is  invoked,  it  is 
essential  to  the  exercise  of  the  jurisdiction  that  there 
should  be  a  "  case  "  before  the  court,  that  is,  a  subject- 
matter  of  litigation  contested  by  competent  parties.1 
It  is  also  essential  that  the  question  for  decision  be 
jiiilicial  in  character,  for  the  courts  cannot  decide  politi- 
cal questions,  such  as  whether  or  not  the  people  of  a 
state  have  altered  their  form  of  government  by  abolish- 
ing an  old  government  and  establishing  a  new  one  in  its 
place,2  nor  whether  or  not,  in  a  foreign  country,  a  new 

1  In  Osborn  v.  The  Bank  ol  the  United  States,  9  Wheat.  818,  Marshall,  C. 
J.,  said,  "the  legislative,  executive,  and  judicial  powers  of  every  well  con- 
structed government,  are  co-extensive  with  each  other,  that  is,  they  are  poten- 
tially co-extensive.     The  executive  department  may  constitutionally  execute 
every  law  which  the  legislature  may  constitutionally  make,  and  the  judicial 
department  may  receive  from  the  legislature  the  power  of  construing  every 
such    law.      All  governments  which  are   not   extremely  defective   in   their 
organization,  must  possess  within  themselves  the  means  of  expounding,  as 
well  as  enforcing,  their  own  laws.     If  we  examine  the  Constitution  of  the 
United  States,  we  find  that  its  framers  kept  this  great  political  principle  in 
view.     The  II  Article  vests  the  whole  executive  p-nver  in  the  President,  and 
the  III  Article  declares,  '  that  the  judicial  power  shall  extend  to  all  cases  in 
law  and  equity  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority.'     Tins 
clause  enable-;  the  judicial  department  to  receive  jurisdiction  to  the  full  ex- 
tent of  the  Constitution,  laws,  and  treaties  of  the  United  States,  when  any 
question  respecting  them  shall  assume  such  a  form  that  the  judicial  power  is 
capable  of  acting  on  it.     That  power  is  capable  of  acting  only  when  the  sub- 
ject is  submitted  to  it  by  a  party  who  asserts  his  rights  in  the  form  prescribed 
by  law.      It  then  becomes  a  case,  and  the  Constitution  declares,  that  the 
judicial  power  shall  extend  to  all  cases  arising  under  the  Constitution,  laws, 
and  treaties  of  the  United  States."      In  Cohens  v.  Virginia,  6  Wheat.  379, 
Marshall,  C.  J.,  said,  ''  a  case  in  law  or  equity  consists  of  the  right  of  one 
party,  as  well  as  of  the  other,  and  may  be  truly  said  to  arise  under  the  Con- 
stitution or  a  la\v  of  the  United  States  whenever  its  correct  decision  depends 
on  the  construction  of  either.     Congress  seems  to  have  intended  to  give  its 
own  construction  of  this  part  of  the  Constitution   in  the  2oth  Section  of  the 
Judiciary  Act;    and   we  perceive  no   reason  to  depart  from  that  construc- 
tion." 

2  Luther  v.  Borden,  7  How.  147. 


212  THE  JUDICIAL   POWER. 

government  has  been  established,1  nor  can  the  courts  by 
injunction  restrain  a  state  from  the  forcible  exercise  of 
legislative  power  over  an  Indian  tribe  "asserting  their 
independence,  the  right  to  which  the  state  denies,"2  nor 
enjoin  the  executive  department  of  the  government  of 
the  United  States  from  carrying  into  effect  acts  of 
Congress  alleged  to  be  unconstitutional.3  Such  ques- 
tions can  only  be  decided  by  the  political  power,  "  and 
when  that  power  has  decided,  the  courts  are  bound  to 
take  notice  of  its  decision  and  to  follow  it."4  Upon 
this  principle,  the  recognition  by  Congress  and  the 
executive  of  the  state  governments  of  the  then  lately 
rebellious  states  as  reconstructed  after  the  suppression 
of  the  rebellion  was  held  to  be  binding  upon  the  judi- 
cial department  of  the  government.5  But  the  courts 
may  compel  the  performance  of  a  ministerial  and  non- 
discretionary  duty  by  an  executive  officer,  as,  for  in- 
stance, the  delivery  of  a  signed  and  sealed  commission 
to  an  officer  who  has  been  appointed,  nominated,  and 
confirmed,6  or  the  crediting  to  a  government  creditor  of 
a  sum  of  money  found  by  the  Treasury  to  be  due  under 
the  express  terms  of  an  act  of  Congress.7 

1  Rose  v.  Himely,  4  Cr.  272;  Hoyt  v.  Gelston,  3  Wheat.  324;  Kennett  v. 
Chambers,  14  How.  38. 

2  The  Cherokee  Nation  v.  Georgia,  5  Pet.  120. 

3  Mississippi  v.  Johnson,  4  Wall.  475 ;  Georgia  v.  Stanton,  6  id.  50. 

4  Luther  v.  Borden,  7  How.  147. 

5  Texas  v.  White,  7  Wall.  700,  701, 

6  Marbnry  v.  Madison,  1  Cr.  137. 

7  Kendall,  Postmaster  General,  v.  Stockton,  12  Pet.  527. 

[In  the  courts  of  the  United  States,  laws  of  foreign  countries  may  be  proved 
as  facts,  C.  &  A.  B.  K.  v.  W.  F.  Co.,  119  U.  S.  615,  622  ;  Talbot  v.  Seeman,  1  Cr. 
1  ;  Strother  v.  Lucas,  6  Pet.  763 ;  Armstrong  v.  Lear,  8  id.  52 ;  Church  v. 
Hubbart  2  Cr.  187,  by  the  official  publications  thereof,  satisfactorily  certified, 
Ennis  v.  Smith,  14  How.  400,  or  by  written  copies  thereof  attested  by  the  oath 
of  an  United  States  Consul,  Church  v.  Hubbart,  2  Cr.  187.  Unwritten 
foreign  laws  may  be  proved  by  the  testimony  of  experts,  Ennis  v.  Smith,  14 
How..  400;  Livingston  v.  M.  Ins.  Co., -6  Cr.  274;  Pierce  v.  Indseth,  106  U.  S. 
546.  The  courts  of  the  United  States  take  notice,  without  proof,  of  the  laws 


IMPEACHMENTS.  213 

97.  The  judicial  jurisdiction   of  the  United  States, 
except  as  regards  offenses  of  soldiers  and  sailors  against 
the  Articles  of  War,  and  crimes  punishable  by  impeach- 
ment, can  only  be  exercised  by  courts  duly  constituted 
under  the  Constitution  and  the  laws.     Congress,  there- 
fore, cannot    invest  military  commissions  with  juris- 
diction to  try,  convict,   or  sentence  for   any  offense,  a 
citizen  not  being  a  resident  of  a  state  in  rebellion,  nor 
a  prisoner  of  war,  nor  in  the  military  or  naval  service 
of  the  United  States.1     Courts   martial    may  exercise 
judicial  jurisdiction  with  regard  to  offenses  against  the 
Articles  of  War  by  soldiers,  sailors,  and  militiamen  when 
called  out  for  service.2 

98.  That  which  may  be  termed  the  extraordinary 
judicial  power  of  the  United  States  is  exercised  only  in 
the  trial  of  impeachments.     The  relevant  provisions  of 
the  Constitution  are   that,  "  the    House  of  Represen- 
tatives shall  .     .     .  have  the  sole  power  of  impeach-: 
ment ;" 3  "  the  Senate  shall  have  the  sole  power  to  try 
all  impeachments.     When  sitting  for  that  purpose,  they 
shall  be  on  oath  or  affirmation.     When  the  President 
of  the  United  States  is  tried,  the  Chief  Justice  shall 
preside ;  and  no  person  shall  be  convicted  without  the 
concurrence   of   two-thirds   of    the   members  present. 
Judgment  in  cases  of  impeachment  shall  not  extend 

of  the  several  states,  C.  &  A.  R.  R.  v.  W.  F.  Co.,  119  U.  S.  615,  622;  Owings 
v.  Hull,  9  Pet.  607,  and  of  the  laws  governing  territory  subsequently  acquired 
by  the  United  States,  U.  S.  v.  Perot,  98  U.  S.  430;  Fremont  v.  U.  S.,  17  How. 
542,  557.  But  the  Supreme  Court  of  the  United  States,  in  the  exercise  of  its 
appellate  jurisdiction,  does  not  take  judicial  notice  of  the  laws  of  foreign 
countries,  nor  of  the  laws  of  the  several  states  of  the  United  States,  if  such 
laws  have  not  been  found  as  facts  in  the  courts  of  the  first  instance,  Hanley  v. 
Donaghue,  116  U.  S.  1 ;  C.  &  A.  R.  R.  t>.  W.  F.  Co.,  119  U.  S.  615,  623.] 

1  Ex  parte  Milligan,  4  Wall.  2. 

2  Wise  v.  Withers,  3   Cr.  331  ;  Houston  v.  Moore,  5  Wheat.  1 ;  Martin  r. 
Mott,  12  id.  19  ;  Dynes  v.  Hoover,  20  How.  65  ;  Ex  parte  Mason,  105  U  S. 
696 ;  Keyes  v.  U.  S.,  109  id.  336 ;  Wales  v.  Whitney,  114  id.  564. 

3  Art.  I,  Sec.  2. 


214  THE    JUDICIAL    POWER. 

further  than  to  removal  from  office  and  disqualification 
to  hold  and  enjoy  any  office  of  honour,  trust,  or  profit, 
under  the  United  States  ;  but  the  party  convicted  shall, 
nevertheless,  be  liable  and  subject  to  indictment,  trial, 
judgment,  and  punishment,  according  to  law."  "The 
President,  Vice-President,  and  all  civil  officers  of  the 
United  States,  shall  be  removed  from  office  on  impeach- 
ment for,  and  conviction  of,  treason,  bribery,  or  other 
high  crimes  and  misdemeanors," 2  "  The  President 
shall  .  .  .  have  power  to  grant  reprieves  and  pardons 
for  offenses  against  the  United  States  except  in  cases  of 
impeachment."  3  "  The  trial  of  all  crimes  except  in 
cases  of  impeachment  shall  be  by  jury."4  "  No  bill  of 
attainder  or  ex  post  facto  law  shall  be  passed."  5  The 
Supreme  Court  of  the  United  States  has  never  decided 
any  question  as  to  impeachment,  but  a  consideration  of 
the  constitutional  provisions  shows  clearly  that,  under 
them,  the  House  of  Representatives  is  the  prosecutor ; 
any  civil  officer  of  the  United  States  may  be  the  de- 
fendant; the  Senate  of  the  United  States  is  the  court, 
its  members  being  first  sworn  or  affirmed,  the  Chief 
Justice  of  the  Supreme  Court  of  the  United  States  pre- 
siding in  the  case  of  a  trial  of  the  President,  and  a  con- 
currence of  two-thirds  of  the  members  present  being- 
necessary  to  a  conviction ;  the  offences  for  which  an 
impeached  officer  may  be  tried  being  "  treason,  bribery, 
or  other  high  crimes  and  misdemeanors,"  as  defined  by 
laws  of  the  United  States  enacted  before  the  com- 
mission of  the  offense  ;  the  punishment  extending  only 
"  to  removal  from  office  and  disqualification  to  hold  and 
enjoy  any  office  of  honour,  trust,  or  profit  under  the 
United  States,"  but  without  prejudice  to  indictment, 

1  Art.  T,  Sec.  3.  2  Art.  II,  Sec.  4. 

3  Art.  II,  Sec.  2.  *  Art.  Ill,  Sec.  2. 

5  Art.  I.  Sec.  9. 


CONSTITUTIONAL    CONSTRUCTION.  215 

trial,  and  conviction  at  law  for  the  same  offense ;  and  a 
presidential  pardon  not  being  pleadable  in  bar  of  the 
impeachment  nor  efficacious  in  satisfaction  of  a  con- 
viction after  impeachment,  or  in  mitigation  of  the 
punishment. 

99.  The  most  important  function  of  the  Supreme 
Court  of  the  United  States  is  that  of  construing  the 
Constitution  authoritatively  and  finally,  so  far  as  re- 
gards subject-matters  of  judicial  determination.  The 
rules,  which  are  applied  by  the  court  in  the  construc- 
tion of  the  Constitution,  are  few  and  simple.  (1).  The 
construction  is  neither  lax  nor  rigorous,  but  such  as  to 
effectuate  the  purpose  of  the  instrument  as  "an  estab- 
lishment of  a  frame  of  government  and  a  declaration 
of  that  government's  fundamental  principles  intended 
to  endure  for  ages  and  to  be  adapted  to  the  various 
crises  of  human  affairs/'1  (2).  The  antecedent  history 
of  the  country  and  the  state  of  the  public  affairs  at  the 
time  of  the  adoption  of  the  Constitution  are  considered, 
in  order  that  the  old  law,  the  mischief,  and  the  remedy 
may  have  their  relative  weight.2  (3).  A  contempo- 
raneous legislative  exposition  acquiesced  in  for  a  long 
term  of  years  fixes  the  construction.3  (4).  The  words 
are  read  in  their  natural  sense.4  departing  from  and 
varying  by  construction  the  natural  meaning  of  the 
words  only  where  different  clauses  of  the  instrument 
bear  upon  each  other  and  would  conflict,  unless  the 
words  were  construed  otherwise  than  by  their  nat- 
ural and  common  import.5  (5).  An  exception  from  a 

1  Juilliard  v.  Greenman,  110  U.  S.   421;  Gibbons  v.  Ogden,  9  Wheat.  1; 
Martin  v.  Hunter's  Lessee,  1  Wheat.  304. 

2  Rhode  Island  v  Massachusetts,  12  Pet.  657. 

ft  Stuart  v.  Laird,  1  Cr.  299 ;  Brisco  i.  The  Bank  of  the  Commonwealth   of 
Kentucky,  11  Pet.  317  ;  Cooper  Manufacturing  Co.  v.  Ferguson,  113  U.  S.  727. 

4  Gibbons  v.  Ogden,  9  Wheat.  1. 

5  Sturges  v.  Crowniushield,  4  Wheat.  122. 


216  THE   JUDICIAL   POWEK. 

power,  which  is  granted  in  express  terms,  marks  the 
extent  of  the  power  and  shows  that  the  power  neces- 
sarily includes  other  cases  which  come  within  the  terms 
of  the  grant  and  which  might  have  been,  but  were  not, 
specifically  excepted.1  (6).  The  Federalist  is  not,  o 
course,  of  binding  authority  upon  the  Supreme  Court 
with  regard  to  the  judicial  construction  of  the  Constitu- 
tion, but  as  Marshall,  C.  J.,  said  in  Cohens  v.  Virginia,2 
the  "  opinion  of  the  Federalist  has  always  been  consid- 
ered as  of  great  authority.  It  is  a  complete  commen- 
tary on  our  Constitution,  and  is  appealed  to  by  all 
parties  in  the  questions  to  which,  that  instrument  has 
given  birth.  Its  intrinsic  merit  entitles  it  to  this  high 
rank,  and  the  part  two  of  its  authors  performed  in 
framing  the  Constitution  put  it  very  much  in  their 
power  to  explain  the  views  with  which  it  was  framed." 
(7).  The  reported  proceedings  of  the  convention  which 
framed  the  Constitution,  and  of  the  several  state  con- 
ventions which  ratified  it,  though  frequently  referred  to 
in  the  discussions  of  questions  of  constitutional  construc- 
tion, are  not  of  binding  authority.  The  views  expressed 
in  the  debates  are  merely  the  views  of  the  individual 
speakers,  and  do  not  necessarily  express  the  view  of  the 
subject  which  induced  the  federal  convention  to  insert 
the  particular  provision  in  the  Constitution  as  framed 
by  them,  or  which  led  the  convention  of  any  one  state 
to  ratify  the  Constitution.  The  votes  of  the  convention 
on  the  details  of  the  Constitution  are  of  no  greater  im- 
portance, for  an  affirmative  vote  approving  a  particular 
section  of  the  Constitution,  throws  no  light  on  the  mean- 
ing of  the  words  of  the  section ;  and  a  negative  vote 
rejecting  a  proposed  constitutional  provision  may  with 

1  Gibbons  v.  Ogden,  9  Wheat.  1 ;  Khode  Island  v.  Massachusetts,  12  Pet.  657 ; 
Brown  v.  Maryland,  12  Wheat.  438. 
»  6  Wheat.  418. 


THE    XI    AMENDMENT.  217 

equal  propriety  be  regarded  as  an  expression  of  opinion 
to  the  effect  that  the  proposed  provision  is  unnecessary 
because  adequately  supplied  by  other  provisions  of  the 
Constitution,  or  as  a  refusal  to  adopt  the  particular 
provision  because  in  the  opinion  of  the  convention  such 
a  provision  ought  not  to  be  inserted  in  the  Constitution. 
It  must  be  remembered  that  the  Constitution  derives  its 
whole  force  and  authority  from  its  ratification  by  the 
people,1  and  whenever  it  becomes  necessary  to  determine 
the  meaning  of  any  clause  in  the  Constitution,  the  real 
question  for  decision  is  not,  what  did  the  federal  con- 
vention, or  any  member  thereof,  understand  that  clause 
to  mean  when  that  convention  framed  the  Constitution, 
nor  what  did  the  members  of  any  particular  state 
convention  understand  that  clause  to  mean  when  their 
convention  ratified  the  Constitution,  but  what  did  that 
clause  really  mean  as  ratified  by  all  the  conventions, 
and  that  meaning  can  only  be  determined  by  the 
application  of  the  established  rules  of  judicial  construc- 
tion.2 

100.  The  Supreme  Court  having  in  Chisholm  v. 
Georgia 3  affirmed  its  original  jurisdiction  in  actions 
brought  by  citizens  of  one  state  against  another  state,  in 
1797  the  XI  Amendment  was  adopted,  declaring,  that 
"the  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity  commenced 
or  prosecuted  against  one  of  the  United  States  by  citi- 
zens of  another  state,  or  by  citizens  or  subjects  of  any 
foreign  states."  That  amendment  having  taken  effect 
on  8  January,  1798,  in  that  year  the  Supreme  Court 
decided  in  Hollingsworth  v.  Virginia,4  that  the  amend- 

1  MeOulloch  v.  Maryland,  4  Wheat.  316,  404. 

2  The  view  as  stated  in  the  text  has  been  forcibly  put  by  Mr.  McMurtrie  in 
his  "Observations  on  Mr.  George  Bancroft's  Plea  for  the  Constitution,"  p.  8, 
et  sei/. 

3  2  Dull.  419.  4  3  Dull.  378. 


218  THE   JUDICIAL    POWEE. 

nient  barred  any  further  proceedings  in  cases  then 
depending  in  the  courts  of  the  United  States  in 
which  a  citizen  of  one  state  was  the  plaintiff,  and 
another  state  was  the  defendant.  In  Osborne  v.  The 
Bank  of  Q.  S.,1  Marshall,  C.  J.,  said:  "The  XI 
Amendment  .  .  .  is  of  necessity  limited  to  those 
suits  in  which  a  state  is  a  party  to  the  record,"  but  he 
added,2  "  the  state  not  being  a  party  to  the  record,  and 
the  court  having  jurisdiction  over  those  who  are  parties 
on  the  record,  the  true  question  is  not  one  of  jurisdic- 
tion, but  whether  in  the  exercise  of  its  jurisdiction,  the 
court  ought  to  make  a  decree  against  the  defendants ; 
whether  they  are  to  be  considered  as  having  a  real  in- 
terest, or  as  being  only  nominal  defendants."  On  the 
other  hand  he  said,3  "  this  suit  is  not  against  the  state 
of  Ohio  within  the  view  of  the  Constitution,  the  state 
being  no  party  on  the  record."  The  jurisdictional 
question  in  the  cause  was  as  to  the  power  of  the  court 
to  take  cognizance  of  a  suit  in  equity  brought  bv  the 
Bank  of  the  United  States  against  the  auditor  of  the 
state  of  Ohio  to  enjoin  the  collection  of  a  tax  on  the 
business  of  the  bank  imposed  by  a  statute  of  Ohio,  and 
to  recover  a  sum  of  money  wrongfully  taken  out  of  the 
vaults  of  the  bank  by  the  state  auditor  by  way  of  en- 
forcing the  payment  of  the  tax,  and  the  court  sustained 
the  jurisdiction  on  the  grounds  stated  by  the  Chief 
Justice.  In  view  of  the  judgment  in  the  cause  and 
the  dicta  of  the  Chief  Justice,  it  was  not  unnatural  that 
the  presence  or  absence  of  a  state  as  a  party  defendant 
on  the  record  should  have  been  regarded  as  the  criterion 
by  which  to  determine  whether  or  not  a  suit  was  within 
the  purview  of  the  XI  Amendment.  Indeed  in  Davis 
v.  Gray,4  the  court  went  so  far  as  to  hold  that  a 

1  9  Wheat.  738,  857.  3  p.  868. 

2  p.  858.  *  16  Wall.  203. 


THE    XI    AMENDMENT.  219 

receiver  of  a  railway  could  sue  in   equity  the  gover- 
nor  of  the   state   incorporating   the  railway    and    the 
land  commissioner  of  the  state  to  restrain  the  issue  of 
patents   to   individuals    for    certain    lands   theretofore 
granted   by  the  state  to  the  railway  on   certain   condi- 
tions, and  resumed   by  the  state  for  alleged    non-per- 
formance of  the  condition,  and  that  it  not   being  pos- 
sible to   make  the  state  a  party  the  plaintiff's   rights 
could  be  vindicated  by  a  decree  against  the  officers  of 
the   state,  but   the  later   decisions  of  the   court   have 
tended  toward  the  establishment  of  a  sounder  rule  on 
this  subject;  and  it  is  now  settled,  that  the  criterion  is 
not  the  presence  or  absence  of  the  state  as  a  party  de- 
fendant on  the  record,  but  the  question  of  fact,  is  or  is 
not  the  suit  in  substance,  though  not  in   form,  a  suit 
by  a    citizen   of  another   state   against   a   state  ?     If  a 
state  be  either  a  defendant  on  the  record,  or   the  real 
defendant  though  not  a  party  on  the    record,  the    XI 
Amendment  forbids   the  court  to  take  jurisdiction    of 
the  cause,  unless  the  state  by  its  voluntary  appearance, 
as  in  Clark  -v.  Barnard,1  submits  itself  to  the  jurisdiction 
of  the  court.      In  conformity   with   this  view  it  has 
been  held  that   a  suit  by,  or  against,  the  governor  of 
a  state  in  his  representative  capacity  is  a  suit  against  the 
state;2  that  the  XI  Amendment  prohibits  a  suit  in  the 
federal  courts  against  the  officers  of  a  state  to  enforce  the 
performance  of  a  contract  made  by  the  state,  where  the 
controversy  is  as  to  the  validity  and  obligation  of  the 
contract,  and  where  the  remedy  sought  is  a  perform- 
ance of  the  contract  by  the  state,  the  nominal  defendants 
having  no  personal  interest  in  the  subject-matter;3  it 

1  108  U.  S.  436,  447. 

2  Georgia  v.  Brailsford,  2  Dall.  402  ;  The  Governor  of  Georgia  v.  Madrazzo, 
1  Pet.  110;  Kentucky  v.  Dennison,  24  How.  466. 

3  Hagood  v.  Southern,  117  U.  S.  52. 


223  THE    JUDICIAL    POWER. 

lias  also  been  held  that  where  a  state  had  bought  a  rail- 
way from  a  receiver  appointed  at  its  instance,  as 
the  holder  of  the  first  mortgage  bonds  of  the  railway, 
the  holders  of  junior  bonds  having  filed  a  bill  to  fore- 
close their  mortgage  and  to  set  aside  the  sale  to  the 
state,  making  the  governor  and  treasurer  of  the  state 
parties  defendant,  the  state  being  a  necessary  party  to 
the  relief  sought,  the  XI  Amendment  barred  the  suit ; l 
and  that  state  officers  cannot  be  compelled,  at  the  suit 
of  a  citizen  of  another  state,  to  appropriate  the  public 
money  of  the  state  in  a  way  prohibited  by  the  laws  of 
the  state,  for  such  a  suit  is  in  fact  a  suit  against  the  state, 
and  where  a  state  cannot  be  sued,  the  court  cannot  assert 
jurisdiction  over  the  officers  of  the  state,  so  as  to  control 
them  in  their  administration  of  the  finances  of  the 
state.2  It  has  also  been  held  that  the  XI  Amendment 
bars  a  suit  by  one  state  against  another  state,  where  the 
plaintiff'  state  sues,  not  in  its  own  right,  but  only  for  the 
benefit  of  certain  of  its  citizens  who  have  assigned  to  it 
their  claims  against  the  state  defendant ; 3  that  a  private 
person  cannot  bring  a  personal  suit  in  the  Supreme 
Court  of  the  United  States  against  a  state  to  recover  the 
proceeds  of  property  in  the  possession  of  that  state,  such 
as  the  proceeds  of  certain  slaves  alleged  to  have  been 
illegally  seized  by  the  state  ; 4  and,  in  the  case  of  In  re 
Ayers,5  that  the  XI  Amendment  forbids  the  court  to 
take  jurisdiction  of  a  bill  in  equity  filed  by  a  holder  of, 
and  dealer  in,  coupons  of  the  bonds  of  the  state, 
the  coupons  under  the  statutes  of  the  state  and  the 
judgments  of  the  court  being  receivable  in  payment 

1  Cunningham  v.  M.  &  B.  R  R.,  109  U.  S.  446. 

2  Louisiana  v.  Jumel,  107  U.  S.  711. 

3  New  Hampshire  v.  Louisiana,  New  York  v.  Louisiana,  108  U.  S.  76. 

4  Ex  parie  Madrazzo,  7  Pet.  627 ;  The  Governor  of  Georgia  v.  Madrazzo,  1 
Pet.  110. 

*  123  U.  S.  443. 


THE  ^XI    AMENDMENT.  LJl'l 

of  state  taxes,  to  enjoin  the  officers  of  a  state  from 
prosecuting,  on  behalf  of  the  state,  actions  against  citi- 
zens of  the  state,  for  collection  of  taxes,  under  a  statute 
of  the  state,  directing  the  prosecution  of  the  actions, 
and  providing  that  "  if  the  defendant  relies  on  a  tender 
of  coupons  as  payment  of  the  taxes  claimed,  he  shall 
plead  the  same  specifically  and  in  writing,  and  file  with 
the  plea  the  coupons  averred  therein  to  have  been  ten- 
dered," and  "  the  burden  of  proving  the  tender  and 
the  genuineness  of  the  coupons  shall  be  on  the  de- 
fendants ;"  the  equity  set  up  by  the  plaintiffs  in  the 
injunction  suit  being  that  they  had  purchased  coupons, 
for  the  purpose  of  dealing  in  them  and  selling  them  to 
taxpayers  to  use  in  payment  of  taxes  to  the  state,  and 
that,  unless  the  action  threatened  by  the  state  officers 
were  enjoined,  the  plaintiffs  would  not  be  able  to  sell 
their  coupons  at  a  profit.  Matthews,  3..  said,  "  the 
object  and  purpose  of  the  XI  Amendment  were  to 
prevent  the  indignity  of  subjecting  a  state  to  the  coer- 
cive process  of  judicial  tribunals  at  the  instance  of 
private  parties.  It  was  thought  to  be  neither  becoming 
nor  convenient  that  the  several  states  of  the  Union,  in- 
vested with  that  large  residuum  of  sovereignty,  which 
had  not  been  delegated  to  the  United  States,  should  be 
summoned  as  defendants  to  answer  the  complaints  of 
private  persons,  whether  citizens  of  other  states  or 
aliens,  or  that  the  course  of  their  public  policy  and  the 
administration  of  their  public  affairs  should  be  subject 
to,  and  controlled  by,  the  mandates  of  judicial  tribunals 
without  their  consent,  and  in  favour  of  individual  in- 
terests. To  secure  the  manifest  purposes  of  the  con- 
stitutional exemption  guaranteed  by  the  XI  Amend- 
ment requires  that  it  should  be  interpreted,  not  literally 
and  too  narrowly,  but  fairly,  and  with  such  breadth  and 
largeness  as  effectually  to  accomplish  the  substance  of 


222  THE    JUDICIAL    TOWER. 

its  purpose.  In  this  spirit  it  must  be  held  to  cover,  not 
only  suits  brought  against  a  state  by  name,  but  those 
also  against  its  officers,  agents,  and  representatives,  where 
the  state,  though  not  named  as  such,  is,  nevertheless, 
the  only  real  property  against  which  alone  in  fact  the 
relief  is  asked,  and  against  which  the  judgment  or 
decree  effectually  operates/'  Harlan,  J.,  dissented  on 
the  ground  that  the  dictum  of  Marshall,  C.  J.,  in  Osborn 
v.  The  Bank  of  the  United  States  was  conclusive  in 
favour  of  the  jurisdiction,  and  that 1  "  the  difference 
between  a  suit  against  officers  of  the  state  enjoining 
them  from  seizing  the  property  of  the  citizen  in  obe- 
dience to  a  void  statute  of  the  state,  and  a  suit  enjoin- 
ing such  officers  from  bringing  under  the  order  of  the 
state,  and  in  her  name,  an  action  which,  it  is  alleged, 
will  result  in  injury  to  the  rights  of  the  complainant, 
is  not  a  difference  that  affects  the  jurisdiction  of  the 
court,  but  only  its  exercise  of  jurisdiction.  If  the  former 
is  not  a  suit  against  the  state,  the  latter  should  not  be 
deemed  of  that  class."  On  the  other  hand,  it  has  been 
held  that  the  amendment  does  not  prohibit  the  exercise 
by  the  court  of  its  appellate  jurisdiction  over  state  courts 
in  cases  of  criminal  cognizance,  for  the  purchase  or  prose- 
cution of  a  writ  of  error  to  reverse  a  criminal  conviction 
at  the  prosecution  of  the  state  is  not  the  commencement 
or  prosecution  of  a  suit  at  law  against  that  state ; 2  nor 
does  the  XI  Amendment  prohibit  the  exercise  by  the 
court  of  jurisdiction  over  a  controversy  between  individu- 
als as  toland  granted  by  and  daimed  under  a  state;3  nor 
does  the  fact  that  a  state  is  a,  or  the  sole,  shareholder  in  a 
banking  corporation  prevent  the  courts  of  the  United 
States  from  taking  cognizance  of  a  suit  against  such  a 

1  p.  546. 

2  Cohens  v.  Virginia,  6  Wheat.  264. 

3  Fowler  v.  Lindsay,  3  Dall.  411. 


THE    XI    AMENDMENT.  223 

corporation,1  for,  as  Marshall,  C.  J.,  said,1  "when  a 
government  becomes  a  partner  in  any  trading  com- 
pany, it  divests  itself,  so  far  as  concerns  the  transactions 
of  that  company,  of  its  sovereign  character,  and  takes 
that  of  a  private  citizen."  Nor  does  the  fact  that  a 
state  claims  property,  which  is  not  in  its  own  pos- 
session but  in  the  possession  of  an  individual,  who  has 
been  made  defendant  in  an  action  to  recover  that  prop- 
erty, oust  the  jurisdiction  of  the  court  of  the  United 
States,  nor  forbid  the  court  to  give  judgment  in  favour 
of  the  plaintiff.8  It  is  likewise  well  settled,  that  "  when 
a  plain  official  duty,  requiring  no  exercise  of  discretion, 
is  to  be  performed  "  by  an  officer  of  a  state  "  and  per- 
formance is  refused,  any  person  who  will  sustain 
personal  injury  by  such  refusal  may  have  a  mandamus 
to  compel  its  performance ;  and  when  such  duty  is 
threatened  to  be  violated  by  some  positive  official  act," 
of  an  officer  of  a  state,  u  any  person  who  will  sustain 
personal  injury  thereby,  for  which  adequate  compen- 
sation cannot  be  had  at  law,  may  have  an  injunction  to 
prevent  it," 4  or  he  may  maintain  an  action  at  law  for 
damages  against  the  officer  as  a  wrongdoer.  "  In  either 
case,  if  the  officer  plead  the  authority  of  an  uncon- 
stitutional law  for  the  non-performance  or  violation  of 
his  duty,  it  will  not  prevent  the  issuing  of  a  writ.  An 
unconstitutional  law  will  be  treated  by  the  courts  as  null 
and  void." 5  In  conformity  with  this  principle,  it  has 
been  held  that  the  XI  Amendment  does  not  forbid  the 
courts  of  the  United  States  to  take  conizance  of  a 


1  L.  C.  &  C  K.  K.  v.  Letson,  2  How.  497,  550;  The  Bank   of  the  United 
States  v.  The  Planters'  Bank,  9  Wheat.  904,907  ;  Bank  of  Kentucky  v.  Wister, 
2  Pet.  318,  323;  Briscoe  v.  The  Bank   of  Kentucky,  11  Pet.  257,  324;  Curran 
v.  Arkansas,  15  How.  304,  309. 

2  9  Wheat.  407.  3  United  States  v.  Peters,  5  Cr.  115. 
4  per  Bradley,  J.,  in  Board  of  Liquidation  v.  Mc^cmo,  92  U.  S.  541. 

6  per  Bradley,  J.,  in  Board  of  Liquidation  i\  McCanlfc^  U.  S.  541. 

/^iSlL" 
UNIVERSITY 

V  Cii 


224  THE    JUDICIAL    POWER. 

cause  wherein  a  federal  agency,  as,  for  instance,  a 
national  bank,  brings  suit  against  the  officers  of  a  state 
to  enjoin  the  enforcement  of  an  unconstitutional  law  of 
the  state  taxing  that  agency.1  It  has  also  been  held 
that  state  officers  may  be  enjoined  at  the  suit  of  a  holder 
of  consolidated  bonds  of  the  state  which  had  been  issued 
under  an  agreement  for  the  funding  of  the  debt  of  the 
state,  from  issuing  others  of  the  consolidated  bonds  in 
violation  of  the  contract  between  the  state  and  its  bond- 
holders;2 and  that  an  action  brought  by  a  taxpayer 
against  an  officer  of  a  state  to  recover  possession  of 
property  which  that  officer  has  wrongfully  seized  under 
an  unconstitutional  law  of  the  state  for  non-payment 
of  taxes  is  an  action  against  that  officer  as  a  wrongdoer, 
and  not  such  an  action  as  is  prohibited  by  the  XI 
Amendment.3 

As  the  immunity  from  suit  is  a  personal  privilege, 
the  state  may  waive  that  privilege,  and  it  does  waive  it, 
when,  in  a  cause  pending  in  a  court  of  the  United 
States,  in  which  it  has  a  sufficient  interest  to  entitle  it 
to  become  a  party  defendant,  it  causes  an  appearance  to 

be  entered  by  counsel  on  its  behalf,  for  such  an  appear- 

% 

1  Osborn  v.  The  Bank  of  the  United  States,  9  Wheat.  738,  846. 

2  Board  of  Liquidation  v.  McComb,  92  U.  S.  531. 

3  The  Virginia  Coupon  Cases,  114  U.  S.  269,  284.     Some  of  the  cases  were 
actions  of  trespass  or  detinue  ;  others  of  them  were  bills  in  equity  for  an  in- 
junction.    Bradley,  J.,  with  whom  concurred  Waite,    C.  J.,  and   Miller   and 
Gray,  JJ.,  dissented.     Upon  a  like  principle,  it   has  been  held,  that,  officers 
of  the  United  States  being  wrongfully  in  possession  of  land,  the  fact  that  they 
hold  that  possession  not  for  themselves  but  for  the  government  of  the  United 
States  will  not  forbid  courts  to  take  jurisdiction  of  the  rightful  owner's  action 
to  recover  his  land,  nor  prevent  judgment  in  his  favour,  if  his  title   be  made 
out:  Meigs  v.  McClurg's  Lessee,  9  Cr.  11  ;  Wilcox   v.  Jackson,  13   Pet.  498; 
Grisar  v.  McDowell,  6  Wall.  363;    Brown  v.  Huger,  21  How.  305;  United 
States  v.  Lee,  106  U.  S.  196.  In  Mitchel  v.  Harmony,  13  How.  114,  and  in  Bates  v. 
Clark,  95  U.  S.  204,  the  same  rule  was  applied  in  actions  of  trespass  against 
military  officers  of  the  Uni  ed  States  for  the  wrongful  seizure  of  certain  per- 
sonal  property   of  the  plaintiffs,  in   obedience   to   unlawful   orders   from  a 
military  superior. 


THE    IV    AMENDMENT.  225 

ance  is  a  voluntary  submission  to  the  jurisdiction  of  the 
court.1  It  is  obvious  that  the  XI  Amendment  does  not 
affect  the  jurisdiction  granted  by  the  III  Article  to  the 
courts  of  the  United  States  in  actions  wherein  a  foreign 
state,  or  one  of  the  United  States  is  the  plaintiff,  and 
one  of  the  United  States  is  the  defendant. 

101.  The  exercise  of  judicial  power  by  the  United 
States  is,  in  some  respects,  limited  by  certain  other  of 
the  provisions  of  the  Constitution  and  its  amendments. 
In  the  most  important  case  that  ever  came  before 
the  Supreme  Court,2  it  was  held  that  neither  the  Presi- 
dent, nor  the  Congress,  nor  the  Judicial  Department 
can  deny  to  a  citizen  any  one  of  the  safeguards  of  civil 
liberty  incorporated  into  the  Constitution,  and  in  that 
cause  a  citizen  who  was  held  in  custody  under  a  sen- 
tence of  death  pronounced  by  a  military  commission 
was  released  upon  habeas  corpus.  The  last  clause  of 
section  2  of  Article  III  of  the  Constitution  declares  that 
"  the  trial  of  all  crimes,  except  in  case  of  impeach- 
ment, shall  be  by  jury;  and  such  trial  shall  be  held  in 
the  state  where  the  said  crimes  shall  have  been  com- 
mitted ;  but  when  not  committed  within  any  state,  the 
trial  shall  be  at  such  place  or  places  as  the  Congress 
may  by  law  have  directed."  The  IV  Amendment  de- 
clares that  "  the  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  against  unreason- 
able searches  and  seizures,  shall  not  be  violated;  and  no 
warrant  shall  issue,  but  upon  probable  cause,  supported 
by  oath  or  affirmation,  and  particularly  describing  the 
place  to  be  searched,  and  the  persons  or  things  to  be 
seized."  This  amendment  forbids  Congress  to  authorize 
a  court  in  revenue  cases  to  require,  on  motion  of  the 
government's  attorney,  the  defendant,  or  claimant,  to 

1  Clark  v.  Barnard,  108  U.  S.  436,  447. 

2  Exparte  Milligan,  4  Wall.  2. 

15 


226  THE   JUDICIAL   POWER. 

produce  in  court  his  books,  papers,  etc.,  under  penalty 
of  admitting  the  allegations  of  the  government's  attor- 
ney as  to  that  which  those  books,  papers,  etc.,  would 
prove  if  produced.1 

102.  The  V  Amendment  declares,  that  "  no  person 
shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indict- 
ment by  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces  or  in  the  militia  when  in  actual 
service  in  time  of  war  or  public  danger."  This  consti- 
tional  provision  forbids  a  prosecution  upon  information 
in  the  courts  of  the  United  States  in  the  cases  of  crimes 
punishable  by  imprisonment  for  a  term  of  years  at 
hard  labour.2  But  the  striking  of  an  attorney  from 
the  rolls  for  professional  misconduct  is  within  the 
proper  jurisdiction  of  the  court  of  which  he  is  an 
attorney  and  does  not  violate  this  constitutional  provi- 
sion.3 This  amendment  also  forbids  the  trial  or  con- 
viction of  a  prisoner  in  a  case  where  after  presentment 
made  by  the  grand  jury,  the  indictment  is  without  re- 
submission  to  the  grand  jury,  amended  by  striking  out 
words,  even  though  those  words  be  regarded  by  the 
court  as  surplusage,  and  a  prisoner,  after  trial,  convic- 
tion, and  sentence  on  an  indictment  so  amended,  is 
entitled  to  his  discharge  on  habeas  corpus*  The  same 
amendment  also  declares,  that,  no  person  shall  "  be 
deprived  of  life,  liberty,  or  property  without  due  pro- 
cess of  law."  In  Murray's  Lessee  v.  Hoboken  Land 
and  Improvement  Co.,5  Curtis,  J.,  said,  "  the  words 

1  Boyd  v.  U.  S.,  116  U.  S.  616.    The  V  Amendment  is  a  restraint  upon  the 
exercise  of  powers  by  the  United  States,  but  not  by  the  states:  Barren  v.  Bal- 
timore, 7  Pet.  243;  Withers  v.  Buckley,  20  How.  84;  Davidson  v.  New  Orleans, 
96  U.  S.  97  ;  Kelly  v  Pittsburg,  104  id.  78. 

2  Exparte  Wilson,  114  U,  S.  417 ;  Mackin  v.  U.  S.,  117  id.  348 ;  Parkinson  r. 
U.  S..  121  id.  281. 

3  Ex  parte  Wall.  107  U.  S.  265.  *  Ex  parte  Bain,  121  U.  S.  1. 
5  18  How.  272,  276 


THE   V   AMENDMENT.  227 

'  clue  process  of  law '  were  undoubtedly  intended  to 
convey  the  same  meaning  as  the  words  '  by  the  law  of 
the  land  '  in  Magna  Ctiarta.  Lord  Coke,  in  his  com- 
mentary on  those  words,1  says  they  mean  due  process 
of  law.  The  Constitutions,  which  had  been  adopted 
by  the  several  states  before  the  formation  of  the  federal 
Constitution,  following  the  language  of  the  great 
charter  more  closely,  generally  contained  the  words, 
c  but  by  the  judgment  of  his  peers,  or  the  law  of  the 
land.7  .  .  .  The  Constitution  contains  no  descrip- 
tion of  those  processes  which  it  was  intended  to  allow  or 
forbid.  It  does  not  even  declare  what  principles  are  to 
be  applied  to  ascertain  whether  it  be  due  process.  It 
is  manifest  that  it  was  not  left  to  the  legislative  power 
to  enact  any  process  which  might  be  devised.  The 
article  is  a  restraint  on  the  legislative  as  well  as  on  the 
executive  and  judicial  powers  of  the  government,  and 
cannot  be  so  construed  as  to  leave  Congress  free  to 
make  any  process  due  process  of  law  by  its  mere 
will.  To  what  principle,  then,  are  we  to  resort  to  as- 
certain whether  this  process,  enacted  by  Congress,  is 
'  due  process/  To  this  the  answer  must  be  twofold. 
We  must  examine  the  Constitution  itself  to  see  whether 
this  process  be  in  conflict  with  any  of  its  provisions. 
If  not  found  to  be  so,  we  must  look  to  those  settled 
usages  and  modes  of  proceeding  existing  in  the 
common  and  statute  law  of  England,  before  the 
emigration  of  our  ancestors,  and  which  are  shown  not 
to  have  been  unsuited  to  their  civil  and  political  con- 
ditions by  having  been  acted  on  by  them  after  the 
settlement  of  this  country."  In  Pennoyer  v.  Neff,2 
Field,  J.,  said,  that  the  words,  "  due  process  of  law," 
mean  "  a  course  of  legal  proceedings,  according  to 
those  rules  and  principles  which  have  been  established 

1  2  Inst.  50.  2  95  U.  S.  733. 


228  THE   JUDICIAL   POWER. 

in  our  system  of  jurisprudence  for  the  protection  and 
enforcement  of  private  rights.  To  give  such  proceed- 
ings any  validity,  there  must  be  a  tribunal  competent 
by  its  Constitution,  that  is,  by  the  law  of  its  creation, 
to  pass  upon  the  subject-matter  of  the  suit ;  and,  if 
that  involves  merely  a  determination  of  the  personal 
liability  of  the  defendant,  he  must  be  brought  within 
its  jurisdiction  by  service  of  process  within  the  state, 
or  by  his  voluntary  appearance."  In  conformity  with 
these  principles  it  has  been  held,  that  the  trial  of  a 
citizen  by  military  commission  within  a  state  where  the 
courts  are  open  and  the  course  of  justice  unobstructed 
is  not  due  process  of  law.1  It  has  also  been  held 
that  there  is  a  deprivation  of  liberty  without  due  pro- 
cess of  law  when  a  court  by  its  order,  warrant,  or  com- 
mitment, holds  a  prisoner  in  custody,  when  the  primy 
facie  case  against  the  prisoner  does  not  show  that  he 
has  committed  an  offense  of  which  the  court  commit- 
ting him  can  take  cognizance,  and  in  any  such  case  of 
commitment  by  an  inferior  court  of  the  United  States 
the  Supreme  Court  will  issue  a  habeas  corpus  and  dis- 
charge the  prisoner.2 

On  the  other  hand,  it  has  been  held  that  the  owner 
of  property  distrained  and  sold  for  non-payment  of 
taxes  due  to  the  United  States,  is  not  deprived  of  his 
property  without  due  process  of  law.3  It  has  also  been 
held  that  an  officer  of  the  United  States,  whose  accounts, 
as  settled  by  the  auditing  officers  of  the  Treasury,  show 
him  to  have  neglected  to  account  for  and  pay  over 
public  moneys  received  by  him,  is  not  deprived  of  his 

1  Exparte  Milligan.  4  Wall.  2. 

2  United  States  v.  Hamilton,  3  Dall.  17;  Exparte  Bollman  and  Swartwout, 
4  Cranch  75;  Exparte  Lange,  18  Wall.  163;  Exparte  Kearney,  7  Wall.  38; 
Exparte  Wells,  18  How.  307;  Ex  parte  Parks,  93   U.  S.   18;  Exparte  Yar- 
brough,  110  U.S.  651  ;  United  States -w.  Waddell,  113  U.  S.  76. 

3  Springer  v.  United  States,  102  U.  S.  586. 


THE   VI    AMENDMENT.  229 

property  without  due  process  of  law,  when  the  Solicitor 
of  the  Treasury,  in  obedience  to  the  act  of  Congress  of 
15  May,  1820,1  has  issued  a  distress  warrant  under 
which  the  defaulting  officer's  real  property  has  been 
taken  in  execution  and  sold  by  a  marshal  of  the  U. 
S.  without  further  proceedings,  judicial  or  otherwise.2 
The  V  Amendment  also  declares,  that  no  person  shall 
"  be  subject  for  the  same  offense  to  be  twice  put  in 
jeopardy  of  life  or  limb."  Therefore,  a  second  punish- 
ment cannot  be  imposed  for  the  same  crime,  and  hence 
when  a  court  imposes  a  fine  and  imprisonment  as  a 
punishment  where  the  statute  under  which  the  prisoner 
was  indicted  conferred  the  power  to  punish  by  fine  or 
imprisonment,  and  the  fine  has  been  paid,  the  court 
cannot  modify  its  judgment  by  thereafter  imposing  im- 
prisonment alone,  for  the  judgment  of  the  court  having 
been  executed  so  as  to  be  a  full  satisfaction  of  one  of 
the  alternative  penalties,  the  power  of  the  court  as  to 
that  offense  is  ended,  and  a  second  judgment  on  the 
same  verdict,  is,  under  such  circumstances,  void  for 
want  of  power,  and  the  party  must  be  discharged.3  The 
V  Amendment  also  declares,  that  no  person  "  shall  be 
compelled,  in  any  criminal  case,  to  be  a  witness  against 
himself." 

103.  The  VI  Amendment  declares  that,  "  in  all 
criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury,  of 
the  state  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously 
ascertained  by  law,  and  to  be  informed  of  the  nature 
and  cause  of  the  accusation ;  to  be  confronted  with  the 
witnesses  against  him ;  to  have  compulsory  process  for 

1  3  Stat.  592. 

2  Murray's  Lessee  v.  Hoboken  Land  and  Improvement  Co  ,  18  How.  272. 

3  Expartc  Lange,  18  Wall.  163. 


230  THE   JUDICIAL    POWEK. 

obtaining  witneses  in  his  favour,  and  to  have  the  assist- 
ance of  counsel  for  his  defense." l  The  requirement  that 
the  prisoner  "  be  confronted  with  the  witnesses  against 
him  "  will  not  invalidate  a  conviction  in  a  case  where 
the  witnesses  are  absent  by  the  procurement  of  the 
prisoner,  or  where  enough  has  been  proven  to  throw  on 
him  the  burden  of  showing,  and  he  having  full  oppor- 
tunity therefor,  fails  to  show,  that  he  has  not  been 
instrumental  in  concealing  or  keeping  away  the  wit- 
nesses, and  ground  having  been  thus  laid,  evidence  is 
admissible  against  him  of  that  which  the  witnesses 
testified  at  a  previous  trial  on  the  same  issue  between 
the  United  States  and  the  prisoner.2 

104.  The  VII  Amendment  declares,  that,  "  in  suits 
at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be 
preserved."  3  This  amendment  does  not  affect  equity 
causes  in  the  federal  courts,  for  the  determination  by  a 
court  of  equity,  according  to  its  own  course  and  practice 
of  issues  of  fact,  does  not  impair  the  right  of  trial  by 
jury,  because  tha.t  right  does  not  extend  to  causes  of 
equitable  jurisdiction.4  Nor  does  this  amendment  affect 
proceedings  upon  claims  against  the  United  States  heard 
in  the  Court  of  Claims  without  the  intervention  of  a 
jury,  for  the  government  being  suable  only  by  its  own 
consent,  may  declare  in  what  court  it  will  be  sued,  and 
may  prescribe  the  forms  of  pleading  and  rules  of 
practice  in  that  court,  and  such  claims  so  prosecuted 
are  not  suits  at  common  law.5  Nor  does  this  a  mend - 

1  This   amendment  is  a  restraint  upon   the  judicial  action  of  the  United 
States,  and  not  of  the  states:  Twitchell  v.  The  Commonwealth,  7  Wall.  321. 
a  Reynolds  v.  United  States,  98  U.  S.  145. 

3  This  amendment  is  a  restraint  upon  the  exercise  of  powers  by  the  United 
States,   but  not  by  the  states:  Edwards  v.  Elliott,  21  Wall.  532;  Walker  v. 
Sauvinet,  92  U  S.  90 ;  Pearson  v.  Yewdall,  95  id.  294. 

4  Barton  v.  Barbour,  104  U.  S.  726;  Parsons  v.  Bedford,  3  Pet.  433,  446. 

5  McElrath  v.  United  States,  102  U.  S.  426. 


THE   VII   AMENDMENT.  231 

merit  relieve  a  party  from  the  consequences  of  Iris 
antecedent  voluntary  relinquishrnent  of  a  right  of  trial 
by  jury  in  any  particular  cause,  as,  for  instance,  in  the  case 
of  a  banking  corporation  whose  state  charter  stipulates 
that  the  bank  should  have  a  summary  remedy  by  execu- 
tion without  jury  trial  for  the  collection  of  notes  indorsed 
to  it,  and  in  express  terms  made  negotiable  at  the  bank.1 
The  VII  Amendment  also  declares  that  "  no  fact  tried 
by  a  jury  shall  be  otherwise  re-examined  in  any  court 
of  the  United  States  than  according  to  the  rules  of  the 
common  law."  As  Story,  J.,  said  in  Parsons  v.  Bed- 
ford,2 "  this  is  a  prohibition  to  the  courts  of  the  United 
States  to  re-examine  any  facts  tried  by  a  jury  in  any 
other  manner.  The  only  modes  known  to  the  common 
law  to  re-examine  such  facts,  are  the  granting  of  a  new 
trial  by  the  court  where  the  issue  was  tried,  or  to  which 
the  record  was  properly  returnable ;  or  the  award  of  a 
venire  facias  de  novo  by  an  appellate  court,  for  some 
error  of  law  which  intervened  in  the  proceedings." 
The  amendment  obviously  governs  both  the  original 
and  appellate  jurisdiction  of  the  courts  of  the  United 
States,  and  forbids  the  reversal  of  a  verdict  of  a 
jury  save  as  above  indicated.  Congress  cannot  by 
statute  provide  for  the  removal  from  a  state  court  into 
a  federal  court  of  causes  tried  by  jury  in  the  state  court, 
and  for  a  retrial  in  the  federal  court  of  the  facts  and 
law  in  such  action  in  the  same  manner  as  if  the  same 
had  been  originally  commenced  in  the  federal  court.3 

105.  The  federal  supremacy  prevents  the  states  from, 
regulating  the  process  or  practice  of  the  courts  of  the 
United    States   at   law,4   or   in   equity,5  or   in   causes 

1  Bank  of  Columbia  v.  Okely,4  Wheat.  235. 

2  3  Pet.  447.  8  The  Justices  v.  Murray,  9  Wall.  274. 

4  Wayraan  v.  Southard,  10  Wheat.  1 ;  Bank  of  U.  S.  v.  Halstead,  ibid.  51. 

5  Borer  v.  Chapman,  119  U.  8.  587. 


232  THE  JUDICIAL  POWER. 

of  criminal  cognizance,1  but  "  the  laws  of  the  sev- 
eral states,  except  when  the  Constitution,  treaties,  or 
statutes  of  the  United  States  otherwise  require  or 
provide,  shall  be  regarded  as  rules  of  decision  in  trials 
at  common  law,  in  the  courts  of  the  United  States  in 
cases  where  they  apply." 2  The  federal  supremacy  also 
forbids  the  courts  of  the  states  to  refuse  obedience  to  a 
mandate  of  the  Supreme  Court  of  the  United  States, 
reversing  a  judgment  of  a  state  court  in  a  cause  which 
is  of  federal  cognizance  ; 3  and  it  prevents  a  state  legis- 
lature from  annulling  by  statute  the  judgment  of  a 
court  of  the  United  States  in  a  cause  which  is  within  the 
jurisdiction  of  the  court.4  While  a  state  cannot  confer 
jurisdiction  on  a  court  of  the  United  States,  yet  a  state 
may  by  its  legislation  create  legal  and  equitable  rights 
which  can  be  enforced  in  a  court  of  the  United  States 
in  a  cause  whereof  that  court  has  acquired  jurisdiction 
by  reason  of  either  the  citizenship  of  the  parties  or  the 
federal  character  of  the  subject-matter  of  litigation; 
thus,  pilotage  being  a  subject  of  admiralty  and,  there- 
fore, of  federal  jurisdiction,  a  pilot  may  sue  in  a  court  of 
the  United  States  to  recover  pilotage  under  a  state 
statute; 5  and  the  right  under  a  state  statute  to  recover 
damages  for  a  death  caused  by  negligence  is  enforcible 
in  a  cause  between  proper  parties  in  a  court  of  the 
United  States  ;6  and  liens  created  by  state  laws  in  favour 
of  material  men  for  supplies  furnished  to  vessels  in 

1  U.  S.  v.  Keid,  12  How.  361. 

2  Act  of  24  September,  1789,  c.  20,  Sec.  34, 1  Stat.  92;  Kev.  Stat.  Sec.  721. 
See  Field's  Federal  Courts,  p.  430. 

3  Martin  v.  Hunter's  Lessee,  1  Wheat.  304.      *  U.  S.  v.  Peters,  5  Cr.  1 1 5. 
The  general  principle  that  the  lex  fori  governs  the  limitation  of  actions 

applies  to  actions  brought  originally  in  the  courts  of  the  United  States,  and 
also  to  actions  removed  thereto  from  the  courts  of  the  states:  Arnson  v. 
Murphy,  109  U.  S.  238;  Mitchell  v.  Clark,  110  id.  633. 

5  Hobart  v.  Drogan,  10  Pet.  120;  Ex'parte  McNeil,  13  Wall.  236. 

6  C.  &  N.  W.  By.  v,  Whitton,  13  Wall.  270. 


CONFLICT   OF  JURISDICTION.  233 

their  home  ports  or  for  materials  furnished  to  ships  in 
process  of  construction  may  be  enforced  in  the  courts  of 
the  United  States.1 

106,  A  court  of  the  United  States  cannot  enjoin  pro- 
ceedings in  a  court  of  a  state,2  save  in  aid  of  bankruptcy  i 
proceedings  pending  in  a  court  of  the  United  States,  or 
as  a  means  of  preventing  the  enforcement  in  a  court  of  a 
state  of  a  judgment  entered  therein  after  a  cause  has  been 
properly  removed  to  a  court  of  the  United  States  ; 3  nor 
can  the  courts  of  the  United  States  issue  writs  of  man- 
damns  to  courts  of  the  states,  by  way  of  original  pro- 
ceedings where  such  writs  are  not  ancillary  to  a  juris- 
diction which  has  already  attached  in  the  federal  court,4 
but  where  the  jurisdiction  of  the  federal  court  has  pre- 
viously attached  to  a  cause,  that  court  may,  as  process  of 
execution  to  enforce  its  judgment,  issue  a  writ  of  man- 
damus? and  enforce  obedience  thereto,  notwithstanding 
a  court  of  the  state  may  have,  by  injunction,  forbidden 
the  parties  defendant  to  obey  the  mandamus? 

Chattels  taken  in  execution  under  the  judgment  of  a 
court  of  a  state  and  delivered  to  a  claimant  upon  his 
giving  bond  therefor  cannot  be  seized  by  a  marshal 
under  the  process  of  a  court  of  the  United  States.7  A 

1  Edward's  v.  Elliott,  21  Wall.  532 ;  The  Lottawanna.  ibid.  588.     Where  the 
jurisdiction  of  a  court  of  the  United  States  has  attached,  a  party  to  the  suit, 
who  refuses  or  neglects  to  obey  its  process,  will  be  liable  in  damages  to  any 
party  injured  by  such  neglect  or  refusal  (Amy  v.  Supervisors,  11  Wall.  136), 
and  a  trustee  of  property  to  which  the  jurisdiction  of  a  court  of  the  United 
States  has  attached  will  be  held  personally  responsible  if,  without  adequate 
resistance,  he  surrender  such  property  to  the  process  of  a  court  of  a  state. 
Chittendcnv.  Hrewster,  2  Wall.  191. 

2  Diggs  tf.  Walcot,  4  Cr.  179;   Watson  v.  Jones,  13  Wall.  079;  Ilaines  v. 
Carpenter,  91  U.  S.  254;  Dial  v.  Reynolds,  96  id.  340;   Leroux  v.  Hudson,  1.9 
id.  468, 

3  French  v.  Hay,  22  Wall.  250 ;  Dietzsch  v.  Huidekoper,  103  U.  S.  494. 
*  Bath  County  v.  Amy,  13  Wall.  244. 

5  Rigiis  ??.  Johnson  County,  0  Wall.  100  ;  Amy  r.  Supervisors,  11  id.  136. 

6  The  Mayor  v.  Lord,  9  Wall.  409;  The  Supervisors  v  Duraiit,  ibid.  415. 

7  Hogant.  Lucas,  10  Pet.  400, 


234  THE   JUDICIAL    POWER. 

court  of  the  United  States  exercising  jurisdiction  in 
bankruptcy  cannot  divest  liens  upon  the  bankrupt's 
property  created  by  the  judgments,  either  interlocutory 
or  final,  of  the  courts  of  the  states ; 1  the  assets  of  the 
estate  of  an  insolvent  decedent  in  process  of  judicial  ad- 
ministration under  the  order  of  a  Probate  Court  of  a 
state  are  not  subject  to  levy  under  an  execution  issued  by 
a  court  of  the  United  States;2  and  the  trustee  appointed 
by  a  court  of  a  state  under  a  state  statute  to  liquidate 
a  corporation  whose  charter  has  been  forfeited  cannot 
be  sued  in  a  court  of  the  United  States  by  creditors  of 
the  corporation  to  compel  his  allowance  of  a  claim 
against  the  corporation.3 

107.  As  Catron,  J.,  said  in  the  judgment  in  the  case 
of  The  Bank  of  Alabama  v.  Dal  ton,4  "  in  administering 
justice  .  .  .  the  states  of  this  Union  act  independ- 
ently of  each  other,  and  their  courts  are  governed  by 
the  laws  and  municipal  regulations  of  that  state,  where 
a  remedy  is  sought,  unless  they  are  controlled  by  the 
Constitution  of  the  United  States,  or  by  laws  enacted 
under  its  authority."  The  most  important  of  the 
restraints  imposed  by  the  Constitution  upon  the  exer- 
cise of  judicial  jurisdiction  by  the  states  result  from  the 
grant,  in  the  III  Article  of  the  Constitution,  of  judicial 
power  to  the  United  States  over  certain  subjects  of 
jurisdiction,  and  from  the  power  of  Congress  to  render 
that  jurisdiction  exclusive.  Nevertheless,  as  the  Con- 
stitution, laws,  and  treaties  of  the  United  States  are 
"  the  supreme  law  of  the  land,"  the  states,  wherever 
Congress  has  not,  by  legislation  within  the  limits  of 
its  constitutional  powers,  excepted  any  subject  from 

1  Peck  v.  Jenness,  7  How.  612. 

2  Williams  v.  Benedict,  8  How.  107. 

3  Peale  v.  Phipps,  14  How.  368.     See,  also,  Vaughan  v.  Northrop,  15  Pet. 
1 ;  Wiswall  v.  Sampson3  14  How.  52 ;  cf,  Erwin  v.  Lowry,  7  How.  181. 

4  9  How.  527. 

J 


FEDERAL   SUPREMACY.  235 

the  jurisdiction  of  their  courts,  may  exercise  jurisdiction 
therein,  and,  in  such  cases,  rights  arising  under  the 
Constitution,  laws,  and  treaties  of  the  United  States 
may  be  administered,  subject,  of  course,  to  the  appellate 
jurisdiction  of  the  Supreme  Court  of  the  United  States, 
and  to  the  right  of  removal  to  the  federal  courts  of  the 
first  instance ;  thus,  a  tribunal  constituted  by  a  state 
may  enforce  the  militia  laws  of  the  United  States;1  and 
an  assignee  in  bankruptcy  may  sue  in  a  court  of  a  state 
to  recover  the  assets  of  the  bankrupt.2  But  where 
Congress  has  expressed  its  will  that  the  courts  of  the 
United  States  shall  exercise  exclusive  jurisdiction  over 
any  subject-matter,  which  is  included  within  the  con- 
stitutional grant  of  judicial  power  to  the  United  States, 
the  courts  of  the  states  cannot  directly  exercise  judicial 
jurisdiction  over  such  subject-matter.  Upon  this  prin- 
ciple, a  court  of  a  state  cannot  take  cognizance  of  an 
act  declared  to  be  criminal  by  the  statutes  of  the  United 
States,  unless  that  act  be  also  an  offense  against  the  laws 
of  the  state.3  A  state  court  cannot  take  jurisdiction  of 
a  cause  of  admiralty  cognizance,4  such  as  a  proceeding 
in  rem  founded  upon  a  contract  for  the  transportation 
of  passengers  by  sea,  or  upon  a  collision,5  or  upon  a 

1  Houston  v.  Moore,  5  Wheat.  1. 

2  Claflin  v.  Houseman,  93  U.  S.  130 ;  Teal  v.  Felton,  12  How.  284,  referred 
to  by  Bradley,  J.,  93  U.  S.  142,  was  an  action  of  trover  for  a  newspaper  which 
a  postmaster  wrongfully  refused  to  deliver.    See  also  Eyster  v.  Gaff,  91  U.  S. 
521  ;  Exparte  Ohristie,  3  How.  318,  319;  Nugent  v.  Bond,  ibid.  426. 

3  There  is  a  concurrent  jurisdiction  over  crimes,  when  the  criminal  act  is 
an  offense  against  the  laws  of  both  the  United  States  and  of  the  states;  thus, 
a  state  may  punish   the   offense   of  uttering  or  passing  false   coin  as  a  fraud 
practiced  on  its  citizens  :  Fox  v.  Ohio,  5  How.  432,  and  the  United  States  may 
punish  the  same  act  as  a  crime  against  it :  United  States  v.  Marigold,  9  How. 
560.     In  the  same  way,  a  state   might  have,  before  the   adoption  of  the  XIII 
Amendment,  punished  the  harbouring  of  a  fugitive  slave:  Moore  v.  Illinois, 
14  How,  13,  while  the  same  act  could  have  been  punished  in  the  courts  of  the 
United  States  as  an  offense  against  the  fugitive  slave  legislation  of  Congress. 

4  The  Moses  Taylor,  4  Wa  1.  411. 

5  The  Hiue  v.  Trevor,  4  Wall.  555. 

'  '  i 


236  THE   JUDICIAL    POWER. 

contract  of  affreightment,1  but  a  state  court  may  take 
jurisdiction  of  an  action  in  personam  for  mariners' 
wages,2  or  of  a  proceeding  in  rem  founded  upon  a  lien 
given  by  a  state  statute  for  materials  supplied  in  build- 
ing a  ship,3  for  such  actions  are  not  necessarily  of 
admiralty  cognizance.  A  state  court  cannot  take  juris- 
diction of  an  action  at  law  against  a  foreign  consul.4 
A  state  court  cannot  take  jurisdiction  in  patent 
causes,  nor  determine  the  validity  of  a  patent,  or  a 
question  of  infringement,5  but  a  state  court  may  inci- 
dentally pass  upon  the  validity  of  a  patent,  as,  for 
instance,  where  it  is  questioned  in  an  action  for  the 
price  of  the  patent.6  The  distinction  running  through 
the  cases  is,  that,  where  Congress  has  excepted  from 
the  action  of  the  courts  of  the  states  any  subject- 
matter  of  federal  jurisdiction  as  designated  in  the  Con- 
stitution, the  courts  of  the  states  thenceforth  cannot 
directly,  but  may  indirectly  and  collaterally,  act  upon 
such  subject-matter.  The  courts  of  the  states  cannot 
issue  an  injunction  before  final  decree,  nor  an  attach- 
ment on  mesne  process,  against  a  national  bank.7  The  fed- 
eral supremacy  forbids  a  court  of  a  state  to  issue  a  man- 
damus to  an  officer  of  the  United  States,8  or,  by  its  pro- 
cess, to  take  in  execution  goods  imported  into  a  port  of 
the  United  States,  but  not  yet  entered  at  the  Custom- 
House  for  payment  of  duties  to  the  United  States,9  or 
goods,  which,  having  been  seized  for  violation  of  the  rev- 
enue laws  of  the  United  States,  are  in  the  custody  of  a 
marshal  of  the  United  States.10  Nor  can  a  court  of  a  state 

1  The  Belfast,  7  Wall.  624.  3  Edwards  ?>.  Elliott,  21  Wall.  532. 

2  Leon  v.  Galceran,  11  Wall.  185.          *  Davis  v.  Packard,  7  Pet.  276. 

5  Kev.  Stat.,  Sec.  711.     Per  Bradley,  J.,  in  Claflin  v.  Houseman,  93  U.  S. 
140. 

6  See  the  judgment  of  Gray,  J.,  in  Nash  v.  Lull,  102  Mass.  60. 

7  Kev.  Stat.  5242  ;  Pacific  National  Bank  v.  Mixter,  124  U.  S.  721. 

8  McClurg  v.  Silliman,  6  Wheat.  598. 

9  Harris  v.  Dennie,  3  Pet.  292.  10  Slocum  v.  Mayberry,  2  Wheat.  1. 


FEDERAL   SUPREMACY.  237 

take  jurisdiction  of  a  suit  to  determine  whether  or  not 
property  has  been  rightfully  forfeited  under  the  laws  of 
the  United  States.1  Nor  can  a  court  of  a  state  by  injunc- 
tion in  equity  restrain  the  execution  of  a  judgment  of 
a  court  of  the  United  States;2  nor,  under  a  state  in- 
solvent law,  discharge  a  defendant  held  in  custody 
under  a  capias  ad  satisfacie/idutn  issued  by  a  court  of 
tiie  United  States;3  nor  replevy  property  taken  in 
execution  under  a  judgment  of  a  court  of  the  United 
States ; 4  nor  order  the  release,  after  a  hearing  on 
habeas  corpus,  of  a  prisoner  held  in  custody  by  an 
officer  of  the  United  States  under  a  warrant  of  cominit- 
inoiit  from  a  commissioner  of  a  Circuit  Court  of  the 
United  States  upon  a  charge  of  the  commission  of  an 
offense  against  the  laws  of  the  United  States,  or  of  a 
prisoner  held  in  custody  by  the  United  States  after  a 
trial  and  conviction  in  a  court  of  the  United  States  of 
an  offense  against  the  laws  of  the  United  States;5  nor 
release  upon  habeas  corpus  an  enlisted  soldier  in  the 
army  of  the  United  States,  detained  in  custody  under 
the  order  of  his  commanding  officer.6  Nor  can  an  at- 
tachment of  a  debt  by  the  process  of  a  state  court,  after 
the  commencement  of  a  suit  upon  that  debt  in  a  court 
of  the  United  States  bar  the  plaintiff's  recovery  in  that 
suit,7  nor  can  the  pendency  of  state  insolvent  proceedings 
to  set  up  as  a  bar  to  suits  in  the  courts  of  the  United 

1  Galston  v.  Hoyt,  3  Wheat.  246.        2  McKira  v.  Voorhies,  7  Cr.  279. 

3  Duncan  v.  Durst,  1  How.  301. 

4  Freeman  v.  Howe,  24  How.  450  ;  Covell  v.  Hey  man,  111  U.  S.  176. 

5  Ablemanv.  Booth,  21  How.  506. 

6  Tarble's  Case,  13  Wall.  397.     A  state  court  may,  nevertheless,  by  process 
of  habeas  corpus,  inquire  into  the  legality  of  the  detention  of  a  person,  who, 
having  been  arrested  as  a  fugitive  from  the  justice  of  another  state,  is  detained 
in  custody  by  an  agent  of  that  other  state  under  a  warrant  issued  by  the 
governor  of  the  state  within  whose  territory  the  alleged  fugitive  has  come ; 
Kobb  v.  Connolly,  111  U.  S.  024. 

T  Wallace  v.  McConuell,  13  Pet.  136. 


238  THE    JUDICIAL    POWER. 

States  brought  by  parties  who  are  constitutionally  en- 
titled to  sue  therein.1 

108.  In  the  cases  of  persons  who,  or  of  property 
which,  may  be  subject  to  the  jurisdiction  of  the  courts 
of  the  United  States,  and  also  to  that  of  the  courts  of 
the  states,  that  jurisdiction,  which  first  actually  attaches 
either  to  the  person  or  the  property,  will  retain  control 
and  cannot  be  divested  by  process  issued  from  the  other 
jurisdiction.2  An  officer  who,  in  executing  the  process 
issued  by  a  court  in  a  cause  within  its  jurisdiction,  seizes 
property  which  that  process  specifically  designates,  is 
not  liable  to  action  therefor  in  a  court  of  another  juris- 
diction ;  but  an  officer  who,  under  a  judgment  in  per- 
sonam,  seizes  property  not  specifically  designated  in  the 
process  is  liable,  and  may  be  sued  therefor  in  a  court  of 
another  jurisdiction,3  and  the  party  injured  by  such  a 

1  Suydara  v.  Broadnax,  14  Pet.  67  ;  Hyde  v.  Stone,  20  How.  170;  Green  v. 
Creighton,  23  id.  90. 

' 2  Smith  v.  Mclver,  9  Wheat.  532;  Taylor  v.  Carryl,  20  How.  583;  Pulliam 
v  Osborne,  17  id.  471  ;  Herdritter  v.  Elizabeth  Oil  Cloth  Co,  112  U.  S.  294; 
Slocum  v.  Mayberry,  2  WheMt.  .  ;  Freeman  v  Howe,  24  How.  450 ;  Covell  v. 
Hey  man  111  U.  S.  176;  Wallace  v.  McConnell,  13  Pet.  136;  Hagan  v.  Lucas, 
10  Pet  400;  Peck  v.  Jenness,  7  How.  612  ;  Williams  v  Benedict,  8  How.  107  ; 
Peale  v  Phipps,  14  id.  368 ;  Wiswall  v.  Sampson,  ibid.  52  ;  Erwin  v.  Lowry,  7 
id.  SI.  Jn  Covell  v.  hfeyman,  111  U.S.  182,  Matthews,  J.,  said,  "the  for- 
bearance which  courts  of  co-ordinate  jurisdiction,  administered  under  a  single 
system,  exercise  toward  each  other,  whereby  conflicts  are  avoided,  by  avoiding 
interference  with  the  process  of  each  other,  is  a  principle  of  comity,  with, 
perhaps,  no  higher  sanction  than  the  utility  which  comes  from  concord  ;  but 
between  state  courts  and  those  of  the  United  States  it  is  something  more.  It 
is  a  principle  of  right  and  of  law,  and,  therefore  of  necessity.  It  leaves 
nothing  to  discretion  or  mere  convenience.  These  courts  do  not  belong  to  the 
s-ime  system,  so  far  as  their  jurisdiction  is  concurrent ;  and  although  they  co- 
exist in  the  same  space,  they  are  independent,  and  have  no  common  superior. 
They  exercise  jurisdiction,  it  is  true,  within  the  same  territory,  but  not  in  the 
s  ime  plane  ;  and  when  one  takes  into  its  jurisdiction  a  specific  thing,  that  res 
is  as  much  withdrawn  from  the  judicial  power  of  the  other  as  if  it  had  been 
carried  physically  into  a  different  territorial  sovereignty.  To  attempt  to  seize 
it  by  a  foreign  process  is  futile  and  void.  The  regulation  of  process,  and  the 
decision  of  questions  relating  to  it,  are  part  of  the  jurisdiction  of  the  court 
from  which  it  issues." 

8  Slocum  v.  Mayberry,  2  Wheat.  1;  Day  v.  Gallup,   2   Wall.  97;    Buck  v. 
Colbath,  3  id.  334. 


THE   XIV   AMENDMENT.  239 

wrongful  act  by  a  marshal  of  the  United  States  may 
sue  on  the  marshal's  official  bond;1  or,  he  may  file  a 
bill  in  the  federal  court  to  restrain  or  regulate  its 
judgment.2 

10J.  The  exercise  of  judicial  jurisdiction  by  the  states 
is  also  restricted  by  that  provision  of  the  XIV  Amend- 
ment which  declares,  "nor  shall  any  state  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws."  Field,  J.,  in  Pennoyer 
v.  Neff3  defined  the  words  "due  process  of  law"  to 
mean  "  a  course  of  legal  proceedings  according  to  those 
rules  and  principles  which  have  been  established  in  our 
systems  of  jurisprudence  for  the  protection  and  enforce- 
ment of  private  rights;"  and  he  added,  "to  give  such 
proceedings  any  validity,  there  must  be  a  tribunal  com- 
petent by  its  constitution,  that  is,  by  the  law  of  its 
creation,  to  pass  upon  the  subject-matter  of  the  suit; 
and,  if  that  involves  merely  a  determination  of  the  per- 
sonal liability  of  the  defendant,  he  must  be  brought 
within  its  jurisdiction  by  service  of  process  within  the 
state,  or  his  voluntary  appearance."  Of  course,  as 
Field,  J.,  concedes  in  his  judgment,  and  as  is  well  settled 
by  other  authority,  a  court  may  by  a  proceeding  in  ran, 
and  without  any  service  of  personal  process,  determine 
the  rights  of  an  absent  party  to  a  specific  res,  which  is 
within  the  territorial  jurisdiction  of  the  court;  a  court 
may  so  determine  the  status  of  one  of  its  citizens  as  to 
conclude,  within  the  territorial  jurisdiction  of  the  court, 
persons  who  have  not  been  served  with  process  ;  and  an 
appellate  court  may  regulate,  in  its  discretion,  notice  of 
the  removal  to  it  of  a  cause  depending  in  a  court  of  the 

1  Lammon  v.  Feusier,  111  U.S.  17. 

;    2  Krippendorf  v.  Hyde,  110  U.  S.  276.  8  95  U.  S.  733. 

4  BoswelPs  Lessee  v.  Otis,  9  How.  336 ;  Harris  v.  Hardeman,  1-i  How.  334. 


240  THE    JUDICIAL    POWEE. 

first  instance,  and  in  Avhich  the  parties  have  in  the 
court  below  either  voluntarily  appeared,  or  been  duly 
served  with  process.1  It  has  been  held,  under  the  XIV 
Amendment,  that  the  exercise  of  the  right  of  eminent 
domain2  and  the  procedure  for  the  collection  of  assess- 
ments and  taxes,3  cannot  be  said  to  deprive  of  property 
without  due  process  of  law,  if  provision  be  made  "  for  a 
mode  of  confirming  and  contesting  the  charge,  thus  im- 
posed, in  the  ordinary  courts  of  justice,  with  such  notice 
to  the  person,  or  such  proceedings  in  regard  to  the  prop- 
erty, as  is  appropriate  to  the  nature  of  the  case."  It  has 
also  been  held  that  a  state  statute,  directing  the  abate- 
ment of,  as  a  nuisance,  the  manufacture  of  liquors  does 
not  deprive  of  property  without  due  process  of  law.5  It 
has  also  been  held,  that  a  statute  of  a  state,  which,  as  con- 
strued by  its  courts,  provides  that  the  fact  that  a  person 
called  as  a  juror  in  the  trial  of  a  criminal  cause  is  not 
to  be  disqualified  because  he  has  formed  an  opinion  or 
impression  based  upon  rumor  or  newspaper  statements, 
if  he  shall  upon  oath  state  that  his  verdict  will  be  based 
only  on  the  evidence  at  the  trial,  does  not  deprive  the 
prisoner  tried  by  such  jurors  of  life,  liberty,  or  prop- 
erty without  due  process  of  law.6  A  state  may  also  by 
statute  make  water  rates  a  lien  on  land  prior  to  the  lien 
of  a  mortgage  of  date  subsequent  to  the  statute  ; 7  it  may 
require  a  purchaser  of  land  under  a  sale  for  non-pay- 
ment of  taxes  to  bring  his  possessory  action  within  five 

1  Nations  v.  Johnson,  24  How.  195. 

2  Pearson  v.  Yewdall,  95  U.  S.  294. 

3  Kelly  v.  Pittsburgh,  104  U.  S.  78;  McMillen  v.  Anderson,  96   U.  S.  37; 
Hagar  v.  Reclamation  District,  111  U.  S.  701 ;  Kentucky  K.  K.  Tax  Cases,  115 
U.  S.  321  ;  Davidson  v.  New  Orleans,  96  U.  S.  97  ;  Wurts  v.  Hoagland,  114  U. 
S.606  ;  Head  v.  A.  Manufacturing  Company,  113  U.  S.  9. 

4  per  Miller,  J.,  in  Davidson?'.  New  Orleans,  96  U.  S.  97. 

5  Mugler  v.  Kansas,  123  U.  S.  623. 

6  Spies  v.  Illinois,  123  U.  S.  131. 

7  Provident  Institution  v.  Jersey  City,  113  U.  S.  506. 


XIV    AMENDMENT.  241 

years  after  the  sale;1  and  it  may,  without  depriving  a 
debtor  of  his  property,  repeal  a  statute  of  limitations 
after  the  debt  is  thereby  barred.2  Nor  does  the  XIV 
Amendment  restrain  state  action  in  the  regulation  of  its 
judicial  proceedings,  provided  there  be  no  discrimi- 
nation therein  as  against  classes  of  citizens.  A  state 
may,  therefore,  without,  violating  the  amendment,  re- 
strain or  take  away  the  right  of  trial  by  jury  in  civil 
cases,3  or  it  may  permit  the  prosecution  of  crimes  by 
information  after  examination  and  commitment  by  a 
magistrate.4  So  also  a  state  may  freely  prescribe  the 
jurisdiction  of  its  several  courts,  both  as  to  their  terri- 
torial limits  and  the  subject-matter,  amount,  and  finality, 
of  their  respective  judgments  and  decrees,  and  it  may 
vest  in  one  court  final  appellate  jurisdiction  over  the 
courts  of  certain  counties,  and  in  another  court  the  like 
jurisdiction  over  other  counties.5  Nor  does  the  amend- 
ment interfere  with  a  state's  regulation  of  the  remedies 
afforded  to  creditors  of  its  municipalities  for  the  col- 
lection of  their  debts.6  Nevertheless,  a  state  may  not 
to  the  prejudice  of  a  coloured  man,  who  is  put  upon  his 
trial  for  an  offense  against  its  laws,  refuse  to  other 
coloured  Mien  the  privilege  of  serving  upon  the  jury,  nor 
compel  such  a  prisoner  to  submit  to  a  trial  by  a  jury 
from  which  citizens  of  African  descent  are  by  reason  of 
their  race  excluded,  for  to  do  so  is  to  deny  to  the 
prisoner  the  equal  protection  of  the  laws.7  A  nd  a  judge, 
in  whom  there  is  vested  by  a  state  statute  a  discretion  in 
the  selection  of  jurors,  and  who,  in  the  exercise  of  that 

1  Barrett  v.  Holmes,  102  U.  S.  651.  2  Campbell  v.  Holt,  108  U.  S.  477. 

3  Walker  v.  Sutivinet,  92  U.  S.  90;  Church  v.  Kelsey,  121  U.  S.  282. 
*  Hurtado  v.  Californin,  110  U.  S.  517. 
6  Missouri  v.  Lewis,  101  U.  S.  22. 

6  Louisiana  v.  New  Orleans,  109  U.  S.  285;  Commissioners  of  Tippecanoe  v. 
Lucas,  93  id.  108. 

7  Strandcr  r.  West  Virginia,  100  U.  S.  303  ;  Bush  v.  Kentucky,  107  U.  S.  110. 

16 


212  THE   JUDICIAL  POWEK. 

discretion,  excludes  coloured  jurors,  by  reason  of  their 
col  our,  is  liable  to  indictment  in  a  federal  court  therefor.1 
But  a  prisoner  cannot  insist  upon  having  a  jury  com- 
posed, either  in  part  or  in  whole,  of  his  own  race,  for 
all  that  he  can  rightfully  demand  is  a  jury  from  which 
men  of  his  race  are  not  excluded  because  of  their  colour.2 
Nevertheless,  the  amendment,  being  directed  against 
state  legislation  and  not  against  a  judicial  miscon- 
struction of  such  legislation  by  the  courts  of  the  state, 
when  a  state  legislature  has  enacted  laws  for  the  gov- 
ernment of  its  courts,  which,  if  followed,  will  furnish  all 
parties  with  the  needed  protection  to  life,  liberty,  and 
property,  it  has  performed  its  constitutional  duty,  and 
if  one  of  its  courts,  acting  within  its  jurisdiction,  makes 
an  erroneous  decision,  the  state  cannot  be  deemed  guilty 
of  violating  the  amendment;  thus,  where  a  state  statute 
required  of  all  guardians  the  giving  of  a  bond  before 
selling  their  wards'  real  estate,  the  fact  that  a  court  per- 
mitted a  sale  to  be  made  without  requiring  the  giving  of 
such  a  bond  is  not  a  violation  of  the  Amendment.3 

110.  The  judicial  action  of  the  states  is  also  re- 
strained by  Section  1  of  Article  IV  of  the  Constitution, 
which  declares  that,  '*  full  faith  and  credit  shall  be 
given,  in  each  state,  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  state.  And  the 
Congress  may,  by  general  laws,  prescribe  the  manner 
in  which  such  acts,  records,  and  proceedings  shall  be 
proved,  and  the  effect  thereof."  Under  this  constitu- 
tional grant  of  authority  Congress  has  enacted,4  that 
"  the  acts  of  the  legislature  of  any  state  or  territory,  or 
of  any  country  subject  to  the  jurisdiction  of  the  United 


1  Exparte  Virginia,  100  U.  S.  339. 

2  Virginia  v.  Kives,  100  U.  S.  313 ;  Bush  v.  Kentucky,  107  U.  S.  110. 
8  Arrowsmith  v.  Harmoning,  118  U.  S.  194. 

4  Act  of  26  May,  1790,  1  Stat.  122;  Section  905,  Eev.  Stat. 


PROOF  OF  RECORDS.  243 

States,  shall  be  authenticated  by  having  the  seals  of 
such  state,  territory,  or  country  affixed  thereto.  The 
records  and  judicial  proceedings  of  the  courts  of  any 
state  or  territory,  or  of  any  such  country,  shall  be 
proved  or  admitted  in  any  other  court  within  the 
United  States  by  the  attestation  of  the  clerk,  and  the 
seal  of  the  court  annexed,  if  there  be  a  seal,  together 
with  a  certificate  of  the  Judge,  Chief  Justice,  or  presid- 
ing magistrate,  that  the  said  attestation  is  in  due  form. 
Anl  the  said  records  and  judicial  proceedings  so  au- 
thenticated, shall  have  such  faith  and  credit  given  to 
them  in  every  court  within  the  United  States  as  they 
have  by  law  or  usage  in  the  courts  of  the  state  from 
which  they  are  taken."  Legislative  acts  of  a  state  are, 
under  the  terms  of  the  Act  of  1790,  authenticated  by 
the  seal  of  the  state,  and  in  the  absence  of  contrary 
proof,  the  seal  will  be  presumed  to  have  been  affixed 
by  the  officer  having  its  custody  and  duly  authorized 
to  affix  it  to  the  record.1  Such  acts  will  "  be  given 
the  same  effect  by  the  courts  of  another  state  that  they 
have  by  law  and  usage "  in  the  state  of  their  enact- 
ment;2 and,  as  the  courts  of  every  state  and  country 
have  the  exclusive  power  of  construing  its  local 
statutes,  their  construction  thereof  will  be  followed  in 
the  courts  of  other  countries  and  states.3  It  is  essential 
to  the  enforcement  in  the  courts  of  the  states  of  the 
legislative  acts4  and  records  of  judicial  proceedings  in 
the  courts 5  of  another  state,  that  they  be  certified  in 
strict  compliance  with  the  directions  of  the  act  of  Con- 
gress. But  a  judgment  of  a  state  court,  though  certi- 

1  United  States  v.  Amedy,  11  Wheat.  392. 

2  C.  &  A.  R.  R.  v  W.  F.  Co  ,  119  U.  S.  615,  622. 

3  Elmendorf  v.  Taylor,  10  Wheat.  152;  Smith  v.  Coudry,  1  How.  28. 

4  United  States  v.  Amedy,  11  Wheat.  392. 

5  Caperton  v.  Ballard,  14  Wall.  238;   Ferguson  v.  Harwood,  7  Cr.  408; 
Owings  v.  Hull,  9  Pet.  607,  627. 


244  THE   JUDICIAL   POWER. 

fied  in  accordance  with  the  act  of  Congress,  does  not 
operate  proprio  vigore  in  another  state,  and  in  order  to 
give  it  the  force  of  a  judgment  in  that  other  state,  suit 
must  be  brought  upon  it  there,  and  the  period  of 
limitation  as  prescribed  by  the  lexfori  may  be  pleaded 
as  against  such  a  judgment.1  When  so  certified  and 
sued  upon,  such  judgments  must  be  given  the  same 
effect  that  is  given  to  them  in  the  jurisdiction  in  which 
they  have  been  rendered.  Therefore,  to  an  action  on  a 
judgment  so  certified,  nil  debet  cannot  be  pleaded  ; 2  nor 
can  fraud  be  pleaded  to  an  action  on  such  a  judgment.3 
When  the  record  of  a  judgment  falsely  recites  an  appear- 
ance by  counsel,  it  cannot  be  collaterally  impeached, 
when  sued  upon  in  another  state,  for  it  might  have  been 
set  aside  by  audita  querela,  in  the  jurisdiction  wherein  it 
was  rendered.4  But  no  greater  effect  can  be  given  in  a 
state  court  to  a  judgment  of  a  court  of  another  state  than 
would  be  given  to  that  judgment  in  the  state  where  ren- 
dered. Therefore,  a  personal  judgment  which  has  been 
rendered  in  one  state  against  several  parties  jointly, 
service  of  process  having  been  made  on  some  of  them, 
or  they  having  voluntarily  appeared,  and  service  hav- 
ing been  made  by  publication  as  to  the  others,  is  not 
evidence  outside  of  the  state  of  any  liability  on  the 
part  of  those  not  personally  served.5  Nor  will  a  judg- 
ment rendered  in  one  state  against  two  joint  debtors, 

1  McElmoylea.  Cohen,  13  Pet.  312;  Bacon  v.  Howard,  20  How.  22;  The 
Bank  of  Alabama  v.  Dalton,  9  How.  522. 

2  Armstrongs  Carson,  2  Dall.  303;  Mills  v.  Duryee,  7  Cr.  481;  Hampton 
T.  McConnell,  3  Wheat.  234. 

3  Christmas  v.  Russell,  5  Wall.  290 ;  Maxwell  v.  Stewart,  22  id.  77. 

4  Landes  v.  Brant,  10  How.  348,  371.     A  judgment  conclusive  in  the  state 
in  which  it  has  been  rendered  is  conclusive  in  the  courts  of  the  United  States. 
Christmas  v.  Russell,  5  Wall.  302  ;  Cheever  v.  Wilson,  9  Wall.  10S  ;  Pennoyer 
v.  Neff,  95  U.  S.  714;  Caldwell  v.  Carrington,  9  Pet.  86;  C.  &  A.  R.  R.  v.  W. 
F.  Co.,  108  U.  S.  18. 

6  Board  of  Public  Works  v.  Columbia  College,  17  Wall.  521. 


EFFECT   OF    RECORDS.  245 

only  one  of  whom  has  been  served  with  process,  sup- 
port an  action  in  a  court  of  another  state  against  the 
party  not  served,  nor  avail  as  the  foundation  of  a  judg- 
ment against  him.1  A  judgment  recovered  in  one  state 
against  two  joint  defendants,  one  of  whom  has  been 
duly  summoned  and  the  other  has  not,  and  which  is 
valid  and  en  forcible  by  the  law  of  that  state1  against 
the  party  served  with  process,  will  support  an  action 
against  that  party  in  another  state.2  It  is  an  essential^ 
prerequisite  to  the  enforcement  in  any  court  of  a  judg- 
ment, either  in  personam  or  in  rem,  rendered  in  any 
court,  that  the  court  rendering  the  judgment  had  by 
law  jurisdiction  of  the  subject-matter  of  the  suit;3  and, 
if  the  judgment  was  in  p^rsonam,  that  the  defendant 
either  was  served  with  process  within  the  territorial 
jurisdiction  of  the  court,  or  voluntarily  appeared  in  the 
suit ; 4  and,  if  the  judgment  was  in  rem,  that  the  res 
was  within  the  territorial  jurisdiction  of  the  court 
acting  upon  it,  and  was  properly  brought  under  its 
control  ;5  for  process  issued  by  any  court,  and  served 
personally  on  a  defendant  out  of  its  territorial  jurisdic- 
tion, and  process  published  within  that  territorial  juris- 
diction, are  equally  unavailing  in  a  proceeding  to 
establish  a  personal  liability  on  the  part  of  the  defend- 

1  D'Arcy  v.  Ketchum,  11  How.  165. 

2  Hanley  v  Donoghue,  116  U.  S.  1 ;  Renaud  v.  Abbott,  ibid.  277. 

3  Thompson  v.  Whitman,  18  Wall.  457  ;  Rose  v.  Himely,  4  Cr.  241,  269; 
El'iott  i>.  Piersol,  1  Pet.  328,  340;  Voorhees  v.  Bank  of  the  U.  S.,  10  Pet. 
449,  475  ;  Wilcox  v.  Jackson,  13  Pet.  498,  511 ;  Shriver's  Lessee  v.  Lynn,  2 
How.  43,  59 ;  Lessee  of  Hickey  v.  Stewart,  3  How.  750,  762 ;  Williamson  r. 
Berry,  8  How.  495,  540 ;  Glass  v.  Sloop  Betsy,  3  Dall.  7 ;  Thompson  v.  Whit- 
man," 18  Wall.  457  ;  Maxwell  v.  Stewart,  22  Wall.  77. 

4  Pennoyer  v.  Neff,  9o  U.  S.  714;  St.  Clair  v.  Cox,  106  U.  S.  350;  D'Arcy 
v.  Ketchum.  11  How.  165  ;  Mayhew  v.  Thatcher,  6  Wheat.  129 ;  La  Fayette 
Jns.  Co.  v.  French,  18  How.  404;  Harris  v.  Hardman,  14  How.  334     Bischoff' 
r.  Wethered,  9  Wall.  812;  Board  of  Public  Works  v.  Columbia  College,  17 
Wall.  521. 

5  Boswell  v.  Otis,  9  How.  336;  Cooper  v.  Reynolds,  10  Wall.  308;  Ennis  v. 
Smith,  14  How.  400.  430. 


246  THE    JUDICIAL    POWEK. 

ant,  and  while,  where  property  is  by  seizure  or  some 
equivalent  act  brought  within  the  control  of  a  court,  sub- 
stituted service  by  publication  is  sufficient  to  inform  a 
non-resident  owner  of  the  property  of  the  object  of  the 
proceeding,  such  publication  is  not  effectual  to  ground 
a  personal  liability  upon.1  But  if  a  non-resident  de- 
fendant has  by  attorney  voluntarily  appeared  in  the 
action,  and  judgment  has  been  rendered  in  his  favour 
in  the  court  of  the  first  instance,  he  may,  after  the 
withdrawal  of  his  attorney's  appearance,  be  notified,  by 
publication,  of  a  writ  of  error  or  appeal,  by  means  of 
which  the  cause  is  removed  to  an  appellate  tribunal, 
and  a  judgment,  of  reversal  in  that  tribunal  will  be 
binding  on  him  as  a  judgment  in  personam,  and  as  such 
enforcible  against  him  in  the  court  of  another  state.2 
And  a  judgment  in  personam  may  be  rendered  in  a 
proceeding  in  rein  against  a  defendant  out  of  the  juris- 
diction, who  has  by  his  voluntary  appearance  made 
himself  a  party  to  the  litigation,  and  such  a  judgment 
is  enforcible  by  an  action  thereon  in  another  state 
against  that  defendant.3  Where  a  corporation  char- 
tered by  one  state  is  permitted  by  another  state  to 
transact  business  therein  upon  condition  that  service  of 
process  upon  a  resident  agent  of  the  corporation  should 
be. Considered  as  service  upon  the  corporation,  a  judg- 
ment rendered  in  the  latter  state  against  the  corpo- 
ration, and  based  upon  such  service  of  process  upon  the 
agent,  must  be  received  in  the  state  chartering  the  cor- 
poration with  the  same  faith  and  credit  that  is  given  to 
it  in  the  state  wherein  it  is  rendered.4  But  a  judgment 

1  Pennoyer  v.   Neff,   95  U.  S.  714;    Cooper  v.  Reynolds,  10  Wall.  308; 
Webster  v.  Keid,  11   How.  437  ;  Phelps  v.  Holker,  1   Dall.  261 ;  Freeman  v. 
Alderson,  119  U.  S.  185. 

2  Nations  v.,  Johnson,  24  How.  195. 

3  Maxwell  v.  Stewart,  22  Wall.  77. 

*  Lafayette  Ins.  Co.  v.  French,  18  How.  404. 


EFFECT   OF    KECORDS.  247 

in  personam  rendered  against  a  foreign  corporation  in  a 
suit  begun  in  a  state  court  by  an  attachment  of  prop- 
erty, and,  as  incident  thereto,  a  service  of  a  copy  of  the 
writ  and  an  inventory  of  the  attached  property  on  a 
resident  agent,  without  appearance  by  the  corporation, 
is  not  conclusive  in  another  action  to  which  the  corpo- 
ration is  a  party  in  a  court  of  the  United  States.1  The 
record  of  a  judgment  rendered  in  another  state  may  be 
contradicted  as  to  the  facts  necessary  to  give  the  court 
jurisdiction,  and  its  recital  of  the  existence  of  such  facts 
is  not  conclusive,  and  want  of  jurisdiction  may  be  shown 
either  as  to  the  subject-matter  or  as  to  the  person,  and, 
in  proceedings  in  rem^  as  to  the  res.  Therefore,  in  an 
action  of  trespass  de  bonis,  etc.,  in  a  court  of  the  United 
States  against  a  county  sheriff  of  New  Jersey  for  taking 
the  plaintiff's  oyster  boat,  the  defendant  having  pleaded 
in  justification  the  record  of  a  forfeiture  of  the  boat 
under  a  New  Jersey  statute,  authorizing  a  summary 
conviction  on  a  hearing  by  two  justices  of  the  county  in 
which  the  seizure  was  made,  it  was  held,  that  the  recital 
in  the  record  of  a  seizure  of  the  boat  in  the  county  in 
which  the  justices  exercised  jurisdiction  was  open  to 
contradiction  by  evidence  that  the  seizure  was  not  made 
within  the  territorial  limits  of  that  county.2  On  the 
same  principle,  a  recital  in  a  record  of  a  personal  service 
of  a  summons  upon  a  defendant,  may  be  contradicted 
by  proof  that  the  defendant  was  not  served.3  Admin- 
istrators in  different  jurisdictions  of  the  personal  estate 
of  the  same  decedent  are  not  privies  in  estate  to  the 
extent  that  a  judgment  in  one  jurisdiction  against  one 
administrator  is  enforcible  in  the  other  jurisdiction 
against  the  administrator  therein.4  An  objection  to  the 

1  St.  Glair  v.  Cox,  106  U.  8.  350. 
*  Thompson  v.  Whitman,  18  Wall.  457. 
8  Knowles  v.  The  G.  &  C.  Co.,  19  Wall.  58. 
4  Stacy  v.  Thrasher,  6  How.  44. 


248  THE   JUDICIAL   POWEE. 

informality  of  the  authentication  of  a  record  cannot  be 
made  by  a  party  who  has  antecedently  offered  that 
identical  record  in  another  proceeding.1  A  state  statute 
of  limitations,  providing  that  suits  upon  judgments 
rendered  in  other  states,  if  not  brought  within  two 
years  shall  be  barred,  is  a  bar  to  an  action  on  such  a 
judgment  against  one  who  only  became  a  citizen  of  the 
state  on  the  day  on  which  suit  was  brought.2  Wher- 
ever a  state  court  refuses  in  a  cause  to  give  due  effect 
to  a  judgment  rendered  in  a  court  of  the  United  States, 
or  in  a  court  of  another  state,  having  by  law  juris- 
diction of  the  subject-matter  of  litigation,  and  having 
acquired  by  due  service  of  process,  or  otherwise,  juris- 
diction of  the  person  of  the  party  against  whom 
judgment  has  been  rendered,  the  action  of  the  state 
court  in  so  refusing  is  subject  to  review  in  the  Supreme 
Court  of  the  United  States  under  the  25th  Section  of 
Judiciary  Act  of  1789,  and  the  Act  of  5  February, 
1867.3  The  record  of  a  court  of  the  United  States  is 
sufficiently  proved  when  certified  by  the  clerk  of  the 
court  under  its  seal.4  And  the  judgments  of  the  courts 
of  the  United  States,  when  sued  upon,  or  set  up  by 
way  of  defense  in  state  courts,  are,  if  rendered  in  a 
cause  of  which  the  court  of  the  United  States  had 
jurisdiction  both  as  to  the  subject-matter  and  the  res  or 
the  person  of  the  defendant,  conclusive  upon  the  parties 
and  privies  thereto,  and  enforcible  in  the  state  courts 
to  the  same  extent  as  in  courts  of  the  United  States.5 
Judgments  rendered  in  courts  of  the  United  States  in 
causes,  jurisdiction  of  which  was  obtained  by  reason  of 
the  citizenship  of  the  parties,  and  in  which  the  law  of 

1  Urtetiqui  v.  D'Arbel,  9  Pet.  692. 

2  Bank  of  the  State  of  Alabama  v.  Dalton,  9  How.  522. 

3  14  Stat.  385.     Kev.  Stat.  Sec.  709. 

4  Turnbull  v.  Payson,  95  U.  8.  418. 
6  Embry  v.  Palmer,  107  U.  S.  3. 


RECORDS   OF  STATE  COURTS.  249 

the  state  within  which  the  court  sat  was  administered, 
have  only  that  validity  and  effect  which  is  due  to  a  judg- 
ment of  a  court  of  the  state  in  such  a  cause,1  and,  there- 
fore, a  court  of  a  state  which  refuses  to  give  a  greater 
effect  to  such  a  judgment  of  a  court  of  the  United 
States  cannot  be  said  to  decide  against  a  title  or  right 
claimed  under  an  authority  exercised  under  the  United 
States. 

1  Dupasseur  v.  Rochercau,  21  Wall.  130. 


CHAPTER  XI. 

EIGHTS  OF  PERSON  AND  OF  PROPERTY. 

111.  Citizenship  of  the  United  States. 

112.  Citizenship  of  a  state. 

113.  The  right  of  suffrage. 

114.  The  right  of  serving  on  juries. 

115.  Congressional  regulation  of  the  election  of  senators  and  representa- 

tives. 

116.  Personal  and  property  rights. 

117.  The  rights  within  a  state  of  citizens  of  other  states. 

118.  Foreign  corporations. 

119.  The  XIII  Amendment. 

120.  The  XIV  Amendment. 

121.  The  police  power. 

111.  As  Miller,  J.,  pointed  out  in  the  judgment  in 
the  Slaughter  House  Cases,1  the  Constitution,  as 
originally  adopted,  did  not  define  citizenship  of  the 
United  States,  although  it  did,  by  Section  2  of  Article 
IV,  provide  that  "  the  citizens  of  each  state  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens  in 
the  several  states,"  and,  by  Section  2  of  Article  I, 
declare  citizenship  of  the  United  States  to  be  a  neces- 
sary qualification  for  election  as  a  representative  in 
Congress.  In  view  of  that  which  the  Constitution  said, 
and  of  that  which  it  left  unsaid,  upon  this  subject,  it 
might  well  be  concluded  that  citizenship  of  the  United 
States  was  dependent  upon  and  only  incident  to  citizen- 
ship of  a  state,  but  the  point  was  never  judicially 
determined.  The  1st  Section  of  the  XIV  Amendment 
declares,  that  "  all  persons  born  or  naturalized  in  the 

1  16  Wall.  72. 

250 


CITIZENSHIP.  251 

United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  stale  wherein 
they  reside/'  From  and  after  the  adoption  of  that 
amendment,  therefore,  the  birth  within  the  United 
States  of  a  person  subject  to  its  jurisdiction,  or  the 
naturalization  of  an  alien,  makes  the  person  so  born, 
or  naturalized,  a  citizen  of  the  United  States;1  and 
that  right  of  citizenship  is  entitled  to  protection  under 
such  laws  as  Congress  may  enact  in  execution  of  the 
powers  conferred  by  the  XIV  and  XV  Amendments. 
Section  8  of  Article  I  of  the  Constitution  authorizes 
Congress  "  to  establish  an  uniform  rule  of  naturaliza- 
tion." It  is,  therefore,  beyond  the  power  of  any  state 
to  prescribe  the  conditions  of  naturalization,  or  to 
admit  to  citizenship  any  alien  other  than  those  whom 
the  acts  of  Congress  permit  to  be  naturalized  ;2  never- 
theless aliens  may  be  naturalized  by  proceedings  in 
courts  of  the  states  in  conformity  with  the  acts  of  Con- 
gress.3 

112.  In  Dred  Scott  v.  Sandford,4  the  court  deter- 
mined that  a  free  negro  could  not  be  a  citizen  of  a 
state,  but,  in  his  dissenting  judgment,  Curtis,  J., 
showed  that  it  was  an  historical  fact,  that  in  five  of  the 
thirteen  original  states  negroes  were  not  only  recognized 
as  citizens,  but  also  admitted  to  the  exercise  of  the 
right  of  suffrage,  and  that  many  acts  of  Congress  had, 
by  necessary  implication,  recognized  negroes  as  citi- 
zens ;  and  the  weight  of  authority  supports  the  position, 
that  each  state  may,  so  far  as  the  Constitution  of  the 
United  States  does  not  restrain  it,  determine  the  status, 
and  consequently  the  citizenship,  of  the  persons 


1  The  Slaughter  House  Cases,  16  Wall.  73 ;  United  States  v.  Cruikshank, 
92  U.  S.  548. 

2  Chirac  r.  Chirac,  2  Wheat.  269;  Dred  Scott  v.  Sandford,  19  How.  405. 

3  Collet  v.  Collet,  2  Dull.  294.  *  19  How.  393. 


2-32  EIGHTS  OF   PERSON. 

domiciled  within  its  territory.1  By  the  terms  of  the 
XIV  Amendment,  "all  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States  and  of  the 
state  wherein  they  reside."  Therefore  birth,  or  natural- 
ization, in  the  United  States,  followed  by  residence 
within  the  territory  of  any  state,  makes  the  person  so 
born,  or  naturalized,  and  so  residing,  a  citizen  of  that 
state. 

113.  All  citizens  are  not  necessarily  entitled  to  the 
exercise  of  the  right  of  suffrage,  for  the  term  "  citizen," 
in  the  constitutional  sense  of  the  term,  means  one  who 
owes  the  duty  of  allegiance  and  is  entitled  to  the  cor- 
relative right  of  protection,  and  it,  therefore,  includes 
persons,  who,  by  reason  of  sex,  or  age,  may  not  be 
qualified  to  vote.-  The  right  of  suffrage  is  a  subject  of 
state  regulation,  and  not  a  privilege,  or  immunity,  of 
citizenship  protected  by  the  Constitution  of  the  United 
States.  A  state  may,  therefore,  without  contravening 
any  constitutional  provision,  deny  the  suffrage  to  women,2 
but  by  force  of  the  XV  Amendment  a  state  may  not,  in 
its  limitations  on  the  exercise  of  the  right  of  suffrage, 
discriminate  against  citizens  of  the  United  States  on 
account  of  their  "  race,  colour,  or  previous  condition  of 
servitude."  A  state,  therefore,  cannot  limit  the  right 
of  suffrage  to  the  white  race.3  Nevertheless,  the  power 
of  Congress  to  legislate  for  the  protection  of  the  rights 
conferred  by  that  amendment  being  limited  by  the 
terms  of  the  amendment,  Congress  cannot  by  statute 
provide  for  the  punishment  of  state  election  officers  for 
wrongfully  refusing  to  receive  the  vote  of  a  qualified 
voter  at  an  election,  when  that  refusal  is  not  based  upon 

1  Strader  v.  Graham,  10  How.  93 ;  Holmes  v.  Jennison,  14  Pet.  540 ;  Groves 
v.  Slaughter,  15  id.  449;  Prigg  v.  Pennsylvania,  16  id.  539. 

2  Minor  v.  Happersett,  21  Wall.  162.    8  Exparte  Yarbrough,  110  U.  S.  665. 


REGULATION    OF    ELECTIONS.  253 

a  discrimination  against  the  voter  on  account  of  his 
race,  colour,  or  previous  condition  of  servitude;1  nor 
can  a  conviction  in  a  court  of  the  United  States  be  sus- 
tained under  an  indictment  which  charges  the  defendant 
in  general  terms  with  an  intent  to  hinder  and  prevent 
citizens  of  the  United  States,  of  African  descent, therein 
named,  in  the  free  exercise  and  enjoyment  of  the  rights, 
privileges,  immunities,  and  protection,  granted  and 
secured  to  them  as  citizens  of  the  United  States  and  of 
a  state,  without  specifying  any  particular  right,  the  en- 
joyment of  which  the  conspirators  intended  to  hinder 
or  prevent.2 

114.  The  right  of  serving  as  a  juror  being  incident 
to  citizenship,  a  state  cannot  so  regulate  the  selection  of 
jurors  in    its  courts  as  to  prevent  citizens  of  African 
descent  from  serving  as  jurors.3 

115.  Section  4  of  Article  I  of  the  Constitution  de- 
clares that,  "  the  times,  places,  and  manner  of  holding 
elections  for  senators  and  representatives  shall  be  pre^ 
scribed  in  each  state  by  the  legislature  thereof;  but  the 
Congress  may,  at  any  time,  by  law,  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  senators." 
Under  this  clause  of  the  Constitution,  Congress  without 
question  provided  for  the  election   of  its  members  by 
separate  districts,  composed  of  contiguous  territory,  and 
required  the  election   in  every  district  throughout  the 
United  States  to  be  held  on  the  Tuesday  after  the  first 
Monday  of  November  in  every  second  year.     In  other 
respects,  however,  the  exercise  of  power  by  Congress 
on  this  subject  has  been  contested  in  the  courts.     In  the 
several  cases  it  has  been  held,  that  Congress,  having  a 
supervisory  control  over  the  election  of  its  members, 

1  U.  S.  v.  Keese.  92  U.  P.  214.  2  TJ.  S.  v.  Cruiksliank,  92  U.  S  542. 

3  XV  Amendment,  Neal  v.  Delaware,  103  U.  S.  307  ;  Strauder  v.  West  Vir- 
ginia, 100  U.  S.  303  ;  Virginia  v.  Ei\es}ibid.  315  ;  Exparte  Virginia,  ibid.  339. 


254  EIGHTS    OF    PEKSOJNT. 

and  being  authorized  to  make  regulations  of  its  own,  or 
to  alter  regulations  made  by  any  state,  can  by  statute 
impose  duties  on  state  officers  of  election,  punish  the 
non-performance  by  such  officersof  their  duties,  whether 
imposed  by  laws  of  the  state  or  by  acts  of  Congress,  and 
provide  for  the  appointment  of  officers  of  the  United 
States  to  execute  the  regulations  as  made  by  Congress 
or  by  the  states.1  It  has  also  been  held  that  Congress  can, 
for  the  protection  of  the  voters  at  congressional  elections, 
punish  acts  of  violence  or  intimidation,  done  in  further- 
ance of  a  conspiracy  to  prevent  a  voter  from  exercising 
the  franchise  at  such  elections.2 

116.  The  states  retain  full  control  over  the  personal 
and  property  rights  of  their  citizens  and  of  residents 
within  their  territory,  subject  to  the  restraints  imposed 
by  the  Constitution.3  The  states  retain  the  power  of 
regulating  the  tenure  of  real  property  within  their 
respective  limits,  including  the  mode  of  its  acquisition 
and  transfer,  the  rules  of  its  descent,  and  the  extent  to 
which  a  testamentary  disposition  may  be  made  of  such 
land  by  its  owner,  and  a  state  may  forbid  the  United 
States,  by  reason  of  its  not  being  a  corporation  created 
by  the  laws  of  that  state,  to  take  by  devise  lands  within 


1  Ex  part*  Seibold,  100  U  S.  371 ;  Ex  parte  Clarke,  100  U.  S.  399. 

2  Ex  parte  Yarbrough,  110  IT.  S.  651. 

3  As  Waite,  C.  J.,  said  in  Spies  v.  Illinois,  123  U.  S.  166,  "  that  the  firct  ten 
articles  of  amendments  were  not  intended  to  limit  the  powers  of  the  state 
governments  in  respect  to  their  own  people,  but  to  operate  on  the  national 
government  alone,  was  decided  more  than  half  a  century  ago,  and  that  de- 
cision has  been  steadily  adhered   to  since :  Barron  v.  Baltimore,  7  Pet.  243, 
247;  Livingston  v.  Mooro,  ibid.  469,552;   Fox  v.  Ohio,  5  How.  410,  434; 
Smith  v.  Maryland,  18  id.  71,  76  ;  Withers  v.  Buckley,  20  id.  84, 91 ;  Pervear  v. 
The  Commonwealth,  5  Wall.  475,  479;  Twitchell  v.  The  Commonwealth,  7  id. 
321,  325  ;  The  Justices  v.  Murray,  9  id  274,  278 ;  Edwards  v.  Elliott,  21  id. 
532,  557  ;  Walker  v.  Sauvinet,  92  U.  S.  90 ;  United  States  v.  Cruikshank,  ibid. 
542,  552;  Pearson  v.  Yewdall,  95  id.  294,  296;  Davidson  v.  New  Orleans,  96 
id.  97,  101;   Kelly  v.  Pittsburg,  104  id.  78;   Prefer  v.  Illinois,  116  id.  252, 
265." 


PROPERTY   RIGHTS.  255 

the  state.1  The  states  may  legislate  specially  for  the 
sale  or  investment  of  the  estates  of  infants  and  other 
persons  not  sui  juris.2  The  shores  of  navigable  waters, 
and  the  soil  under  those  waters,  were  not  granted  by 
the  Constitution  to  the  United  States,  but  were  reserved 
to  the  riparian  states  respectively,  and  new  states  have 
the  same  rights,  sovereignty,  and  jurisdiction  over  this 
subject  as  the  original  states.3  The  United  States 
having  no  proprietary  titles  to  lands  on  the  shore  of  a 
state,  under  navigable  waters  and  below  high-water 
mark,  can  grant  no  valid  title  thereto.4  A  state  may, 
therefore,  prohibit,  or  license  under  regulation,  the 
taking  of  oysters  and  fish  in  the  navigable  waters  within 
its  limits.5  The  states  may  determine  what  classes  of 
persons  shall  come  and  remain  within  their  territory,6 
provided,  of  course,  that  they  do  not  thereby  impair 
the  rights  of  intercourse  arid  traffic  secured  by  the  Con- 
stitution to  citizens  of  other  states.7  The  Constitution 
makes  no  provision  for  the  protection  of  the  citizens  of 
the  several  states  in  their  religious  liberty,  and  imposes 
no  restraints  on  the  states  in  that  respect,  Therefore, 
a  judgment  of  a  state  court  imposing  a  fine  upon  a  cler- 
gyman for  violation  of  a  municipal  ordinance  regulating 
the  place  and  manner  of  conducting  funeral  services,  is 
not  subject  to  review  in  the  Supreme  Court  of  the  United 
States.8 

117.  Section  2  of  Article  IV  of  the  Constitution  de- 


1  U.  S.  v.  Fox,  94  U.  S.  315.  2  Hoyt  v.  Spragne,  103  U.  S.  613. 

3  Pollard  v.  Hagan,  3  How.  212;  Webber  v.  Harbour  Commissioners,  18 
Wall.  57. 

4  Pollard  v.  Hagan,  3   How.  212;  Goodtittle  v.  Kibbe,  9  id.  471  ;  Doe  »•. 
Beebe,  13  id.  25. 

5  Smith  v.  Maryland,  18  How.  71 ;  McCready  v.  Virginia,  94  U.  S.  391. 

6  Holmes  v.  Jennison,  14  Pet.  540;  Groves  v.  Slaughter,  15  id.  449  ;  Prigg  v. 
Pennsylvania,  16  id.  539. 

7  Infra,  Sec.  117. 

8  Permoli  v.  First  Municipality,  3  How.  589. 


256  PRIVILEGES   OF    CITIZENS. 

clares  that  "  tlie  citizens  of  each  state  shall  be  entitled 
to  all  privileges  and  immunities  of  citizens  in  the  several 
states."  As  Miller,  J.,  said,  in  the  Slaughter  House 
Cases,1  the  "  sole  purpose  "  of  this  constitutional  pro- 
vision "  was  to  declare  to  the  several  states,  that  what- 
ever those  rights,  as  you  grant  or  establish  them  to 
your  own  citizens,  or  as  you  limit,  or  qualify,  or  impose 
restrictions  on  their  exercise,  the  same,  neither  more  nor 
less,  shall  be  the  measure  of  the  rights  of  citizens  of 
other  states  within  your  jurisdiction."  Washington, 
J.,  said,  in  Corfield  v.  Coryell,2  the  privileges  and  im- 
munities in  question  are  those  "  which  are  fundamental, 
which  belong  of  right  to  all  citizens  of  all  free  govern- 
ments, and  which  have  at  all  times  been  enjoyed  by 
citizens  of  the  several  states  which  compose  this  Union, 
from  the  time  of  their  becoming  free,  independent,  and 
sovereign,"  including  "  protection  by  the  government, 
with  the  right  to  acquire  and  possess  property  of  every 
kind,  and  to  pursue  and  obtain  happiness  and  safety, 
subject,  nevertheless,  to  such  restraints  as  the  govern- 
ment may  prescribe  for  the  general  good  of  the  whole." 
In  Paul  v.  Virginia,3  Field,  J.,  said,  "  the  privileges 
and  immunities  secured  to  citizens  of  each  state  in  the 
several  states  .  .  .  are  those  privileges  and  im- 
munities which  are  common  to  the  citizens  in  the  latter 
states  under  their  Constitutions  and  laws  by  virtue  of 
their  being  citizens.  Special  privileges  enjoyed  by 
citizens  in  their  own  states  are  not  secured  in  other 
states  by  this  provision.  It  was  not  intended  by  the 
provision  to  give  to  the  laws  of  one  state  any  operation 
in  other  states.  They  can  have  no  such  operation, 
except  by  the  permission,  express  or  implied,  of  those 
states.  The  special  privileges  which  they  confer  must, 
therefore,  be  enjoyed  at  home,  unless  the  assent  of 

1  16  Wall.  77.  2  4  Wash.  C.  C.  371.  3    8  Wall.  180. 


PRIVILEGES   OF   CITIZENS.  257 

other  states  to  their  enjoyment  therein  be  given."  It 
is  clear  that  this  provision  guarantees  the  privileges 
and  immunities  of  citizens  of  other  states,  and  has  no 
reference  to  action  by  a  state  in  respect  to  its  own 
citizens;1  nor  does  this  constitutional  provision  vest  the 
citizens  of  one  state  with  any  interest  in  the  com- 
mon property  of  citizens  of  another  state.  There- 
fore, a  statute  of  a  state  by  which  other  than  its  own 
citizens  are  prohibited  from  planting  or  taking  oysters 
from  the  soil  which  is  covered  by  the  tide- waters  of 
that  state,  is  not  a  violation  of  any  privilege  or  im- 
munity of  citizens,  for,  subject  to  the  paramount  right 
of  navigation,  the  regulation  of  which  in  relation  to 
foreign  and  interstate  commerce  has  been  granted  to 
Congress  by  the  Constitution,  each  state  owns  the  soil 
of  all  tide-waters  within  its  jurisdiction,  and  may  ap- 
propriate them  to  be  used  by  its  citizens  as  a  common 
for  cultivating  and  taking  fish,  etc.,  if  navigation  be  not 
thereby  obstructed.2  Nor  does  this  constitutional  pro- 
vision require  a  state  to  confer  upon  citizens  of  other 
states  peculiar  privileges  granted  to  its  own  citizens ; 
thus,  the  privilege  of  community  of  acquets  or  gains 
as  between  married  persons  in  Louisiana,  as  regards 
lands  in  Louisiana  acquired  by  a,  citizen  of  Mississippi, 
who,  while  living  in  that  state  has  married  a  woman 
born  in  Louisiana,  cannot  be  claimed  as  a  constitutional 
right,  for  the  wife  by  her  marriage  became  a  citizen  of 
Mississippi.3  On  the  same  principle,  a  state  may  enact 

1  Brad  well  v.  State,  16  Wall.  130.        2  McCready  v.  Virginia,  94  U.  S.  391. 

3  Conner  v.  Elliott,  18  How.  593 ;  Curtis,  J.,  said,  "  we  do  not  deem  it  need- 
ful to  attempt  to  define  the  word  'privileges'  in  the  clause  of  the  Constitu- 
tion. It  is  safer  and  more  in  accordance  with  the  duty  of  a  judicial  tribunal, 
to  leave  its  meaning  to  be  determined  in  each  case,  upon  a  view  of  the  par- 
ticular rights  asserted  and  denied  therein,  and  especially  is  this  true,  when 
we  are  dealing  with  so  broid  a  provision,  involving  matters  not  only  of  great 
delicacy  and  importance,  but  which  are  of  such  a  character  that  any  merely 
abstract  definition  could  scarcely  be  correct ;  and  a  failure  to  make  it  so  would 
17 


258  FOKEIGN    CORPOKATIONS. 

a  statute  of  limitations,  discriminating,  as  regards  suits 
against  non-resident  defendants,  against  creditors,  if 
citizens  of  other  states,  and  in  favour  of  creditors  who 
are  citizens  of  the  state.1  On  the  other  hand  a  state 
cannot,  without  contravening  this  constitutional  pro- 
vision, so  discriminate  by  taxation  against  either  the 
natural  products  of,  or  the  goods  manufactured  in, 
another  state,  as  to  hinder  the  citizens  of  that  other 
state  in  their  exercise  of  the  rights  of  freely  transport- 
ing and  selling  their  goods  manufactured  or  unmanu- 
factured.2 Nor  can  a  state  by  taxation,  or  otherwise, 
restrict  the  exercise  by  the  citizens  of  other  states  of 
their  right  of  free  transit  from  place  to  plai'e  within 
the  United  States,  in  order  to  approach  the  seat  of 
government  of  the  United  States  and  the  federal  offices 
in  the  various  states.3 

118.  Foreign  corporations  are,  in  the  states  of  the 
United  States,  corporations  created  by  any  other  state, 
or  by  a  foreign  government.  A  joint  stock  partnership 
organized  under  the  laws  of  a  foreign  country,  with  a 
statutory  recognition  of  the  distinctive  entity  of  the 

certainly  produce  mischief."  In  McCready  ?'.  Virginia,  94  U.  S.  375,  Waite, 
C.  J  ,  after  referring  to  the  view  thus  expressed  by  Curtis,  J.,  added  "this 
clearly  is  the  safer  course  to  pursue."  These  dicta,  of  course,  mean  only  that 
in  the  decision  of  a  cause,  the  court  ought  to  confine  themselves  to  the  case  at 
bar  and  ought  not  to  so  generalize  as  to  prejudge  ca^es  that  have  not  yet 
arisen  for  determination,  but  they  do  not  mean  that  the  court,  in  order  to 
arrive  at  a  decision  should  reason  empirically,  and  should  avoid  a  clear  state- 
ment of  ti;e  general  principles  whose  application  must  necessarily  determine 
the  particular  case.  If  they  did  mean  that,  they  would  establish  a  u  rule" 
which  is  not  "salutary,"  and  they  would  lay  down  a  "course"  which  is  not 
the  "  safer  "  one  to  pursue. 

1  Cliemung  Canal  Bank  v.  Lowery,  93  U.  S.  72 ;  Strong,  J.,  dissented. 

2  Ward  v.  Maryland,    12   Wall.  418 ;  Welton  v.  Missouri,  91  U.  S.  275 ; 
Webber  v.  Virginia,  103  id.  344;  Guy  v.   Baltimore,  100  id.  434;  Corson  v. 
Maryland,  120  id.  502;    Bobbins  v.  Shelby  County,  ibid.  489;    Walling  v. 
Michigan,  1.16  id.  446  ;  sed  cf.  Hinson  v.  Lott,   8  Wall.  148 ;  Machine  Co.  v. 
Gage,  100  U.  S.  676 ;  Tiernan  v.  Kinker,  102  id.  123  ;  Downham  v.  Alexandria 
Council,  10  Wall.  173. 

3  Crandall  v.  Nevada,  6  Wall.  35, 


FOREIGN  CORPORATIONS.  259 

association  and  with  powers  of  transfer  of  shares  and 
succession  of  members,  and  the  right  to  sue  and  be  sued 
as  an  aggregation,  is  regarded  in  the  United  States  as  a 
foreign  corporation.1  A  corporation  is  not,  in  its  cor- 
porate capacity,  a  citizen,  within  the  meaning  of  the 
Constitution.2  It,  therefore,  cannot,  when  the  juris- 
diction of  the  court  is  dependent  on  the  citizenship  of 
the  parties,  sue  "  the  citizen  of  a  state,  other  than  that 
by  which  it  was  chartered,  unless  the  persons  who  com- 
pose the  corporate  body  are  all  citizens  of  that  state,*' 
but  it  may  in  such  a  case  sue  in  its  corporate  name, 
averring  that  its  members  are  citizens  of  the  state  in- 
corporating it,3  and,  for  purposes  of  jurisdiction,  there 
h  a  conclusive  presumption  of  law  that  the  members  of 
u  corporation  are  citizens  of  the  state  creating  it.4  A 
foreign  corporation  is  not  a  citizen  within  the  meaning 
of  Section  2  of  Art.  IV  of  the  Constitution,  which 
declares  that  "the  citizens  of  each  state  shall  be  en- 
titled to  all  privileges  and  immunities  of  citizens  in  the 
several  states."5  While  corporations  are, so  far  as  regards 
the  legislation  of  the  state  creating  them,  persons  to  be 
protected  within  the  meaning  of  the  XIV  Amendment,6 
a  corporation  chartered  by  one  state  is  not,  within  the 
meaning  of  that  amendment,  a  "person"  within  the 
jurisdiction  of  a  state,  denying  to  it  "the  equal  pro- 
tection of  the  law  "  by  the  discriminating  conditions  on 
which  it  is  permitted  to  do  business  in  the  state.7  A 

1  Liverpool  Ins.  Co.  v.  Massachusetts,  10  Wall.  566. 

2  The  Bank  of  the  United  States  v.  Deveaux,  5  Cr.  61 ;  Paul  v.  Virginia,  8 
Wall.  168. 

3  The  Bank  of  the  U.  S.  v.  Deveaux,  5  Cr.  61. 

4  L.  C.  &  C.  R.  R.  v.  Letson,  2   How.  497 ;  Marshall  t>.  B.  &O.  R.  R.,  16  id. 
314;  C.  D  Co.  v.  Shepherd,  20  /</.  232  ;  O.  &  M.  R  R.  v.  Wheeler,  1  Bl.  286  ; 
Express  Co.  v.  Kountze,  8  Wall.  342  ;  R.  R.  v.  Whitton,  13  Wall.  277. 

5  Paul  v.  Virginia, 8  Wall.  168. 

6  Santa  Clara  County?'.  S.  P.  R.  R.,  118  U.  S.  394,  396. 

7  Phila.  l^ire  Association  v.  New  York,  119  U.  S.  110. 


260  FOREIGN    CORPORATIONS. 

corporation  exists  only  in  contemplation  of  law  and  by 
force  of  law,  and  it  can  have  no  legal  existence  beyond 
the  bounds  of  the  sovereignty  creating  it,  unless  it  be, 
by  comity,  permitted  to  exist  within  the  bounds  of  some 
other  sovereignty.1  A  corporation,  therefore,  cannot 
exercise,  in  any  other  sovereignty  within  whose  bounds 
it  may  be  by  comity  permitted  to  act,  any  power  which 
its  charter  does  not  authorize  it  to  exercise,2  nor  can  it 
exercise  therein  any  power  the  exercise  of  which  is  not, 
either  expressly  or  irnpliedly,  permitted  by  the  laws  of 
the  sovereignty  within  whose  bounds  it  is  exercised, 
saving  rights,  if  any,  secured  to  the  corporation  by  the 
Constitution  of  the  United  States.3  Of  course,  if  there 
be  no  prohibitory  legislation,  it  is  not  competent  for  ;in 
individual  citizen,  not  personally  interested  in  the  cor- 
poration, to  object  to  the  doing  of  business  within  a 
state  by  a  foreign  corporation.4  Unless  the  local  law 
prohibit,  a  foreign  corporation,  if  its  charter  so  autho- 
rizes, may  sue  and  be  sued  in  the  courts  of  a  state,5 
make  contracts,6  acquire  and  hold  real  estate,7  buy 
and  sell  bills  of  exchange,8  and  negotiate  and  issue 
policies  of  life  and  fire  insurance.9  Corporations,  by 

1  The  Bank  of  Augusta  v.  Earle,  13  Pet.  512  ;  O.  &  M.  R.  K.  v.  Wheeler,  1 
Bl.  286;  Runyan  v  Coster,  14  Pet.  112. 

2  Kunyan  v.  Coster,  14  Pet.  112, 130 ;  Bank  of  Augusta  v.  Earle,  13  Pet.  519, 
587. 

3  Runyan  v.  Coster,  14  Pet.  122,  130. 

4  Waite,  C.  .1.,  said,  in  P.  T.  Co.  v.  W.  U.  T.  Co.,  96  U.  S.  ],  13,  "  no  citizen 
of  a  state  can  enjoin  a  foreign  corporation  from  pursuing  its  business.     Until 
the   state  acts  in  its  sovereign    capacity,  individual  citizens  cannot  complain. 
The  state  must  determine  for  itself  when  the  public  good   requires  that  its 
implied  assent  to  the  admission  shall  be  withdrawn." 

5  Bank  of  Augusta  v.  Earle,  13  Pet.  519,  587;  Cowles  v.  Mercer  County,  7 
Wall.  118. 

6  Bank  of  Augusta  v.  Earle,  13  Pet.  519,  591 ;  Runyan  v.  Coster,  14  id.  122, 129. 

7  Runyan  v.  Coster,  14  Pet.  122.       8  Bank  of  Augusta  v.  Earle,  13  Pet.  519. 
9  Paul  V.Virginia,  8  Wall.  168;  Ducat  V.Chicago,  10  id.  410 ;  Liverpool 

Ins.  Co.v.  Massachusetts,  ibid.  566;  Phila.  Fire  Association  v.  New  York,  119 
U.  S.  110 


FOREIGN   CORPORATIONS.  261 

doing  business  within  the  bounds  of  a  sovereignty,  other 
thau  that  which  has  created  them,  do  not  become  cor- 
porations of  that  other  sovereignty,  nor  lose  privileges, 
which  are  incident  to  their  citizenship  in  the  sovereignty 
which  created  them.  Therefore,  a  railway  corporation 
of  Maryland  does  not,  by  becoming  lessee  of  a  railway 
in  Virginia,  forfeit  its  right  to  remove  into  the  Circuit 
Court  of  the  United  States  a  suit  brought  against  it  in 
the  courts  of  Virginia  by  a  citizen  of  that  state.1  A 
state  may  discriminate  in  favour  of  its  own  corporations 
and  against  foreign  corporations  ; 2  it  may  tax  foreign 
corporations,3  it  may  arbitrarily  refuse  to  foreign  cor- 
porations permission  to  do  business  within  its  territory, 
or  it  may  give  its  consent  on  any  conditions  which  "  are 
not  repugnant  to  the  Constitution  or  laws  of  the  United 
States,  nor  inconsistent  with  those  rules  of  public  law 
which  secure  the  jurisdiction  and  authority  of  each 
state  from  encroachment  by  all  others,  or  that  principle 
of  natural  justice  which  forbids  condemnation  without 
opportunity  for  defense;"4  it  may  impose  on  a  foreign 
corporation  a  condition  that  service  of  process  on  the  resi- 
dent agent  representative  of  the  corporation  on  reason- 
able notice  shall  be  considered  a  service  upon  the  corpora- 
tion,5 and  it  may  prohibit  the  transaction  of  the  business 
of  insurance  within  its  bounds  by  a  foreign  corporation, 
or  it  may  impose  in  its  discretion  conditions  on  the 
performance  of  such  business,  for  contracts  of  insur- 
ance being  covenants  for  indemnity  and  not  articles  of 
commerce,  the  negotiation  and  issue  of  policies  of  insur- 

1  B.  &  O.  R  R.  v.  Koontz,  104  U.  S.  5. 

2  Paul  v.  Virginia,  8  Wall.  168;  Ducat  v.  Chicago,  10  id.  410. 

3  Paul  v.  Virginia,  8  Wall.  168;  Ducat  v.  Chicago,  10  id.  410;  Liverpool 
Ins.  Co.  v.  Massachusetts,  ibid.  566. 

*  L.  Ins.  Co.  v.  French,  18  How.  404,  407 ;  St.  Clair  v.  Cox,  106  U.  S.  350, 
356 ;  Paul  v.  Virginia,  8  Wall.  168. 
5  L.  los.  Co.  v.  French,  18  How.  404 ;  St.  Clair  v.  Cox,  106  U.  S.  350,  356. 


262  FOKEIGN   CORPORATIONS. 

ance  are  not  transactions  of  foreign  or  interstate  com- 
merce.1 But  a  state  cannot  rightfully  impose  as  a 
condition  the  non-exercise  by  a  corporation  of  its  right 
of  removing  to  the  courts  of  the  United  States  actions 
brought  against  it  in  the  courts  of  the  state.2  If,  how- 
ever, a  state  prohibit  a  foreign  corporation  from  doing 
business  within  its  bounds,  because  the  corporation  will 
not  forego  the  exercise  of  its  right  of  removal  of  actions, 
the  corporation  cannot  be  protected  by  an  injunction 
issued  by  the  courts  of  the  United  States;3  and  a  state 
statute,  requiring  foreign  corporations  as  a  condition  of 
doing  business  in  a  state  to  stipulate  that  they  \\ill  not  re- 
move into  the  courts  of  the  United  States,  causes  which 
under  the  laws  of  the  United  States  they  would  be  entitled 
to  remove,  is  void,  because  it  makes  the  right  of  doing- 
business  in  the  state  dependent  on  the  surrender  by  the 
foreign  corporation  of  a  right  secured  to  it  by  the 
Constitution  and  laws  of  the  United  States  ;4  and  a 
servant  of  the  corporation5  cannot  be  convicted  for 
doing  business  for  a  corporation  which  had  not  complied 
with  the  statute.6  A  substantial  compliance  by  a 
foreign  corporation  with  the  condition  on  which  it  is 
permitted  to  do  business  within  the  bounds  of  another 
sovereignty  is  sufficient;  thus,  the  law  of  Colorado  requir- 
ing the  filing  of  a  certificate  "designating  the  principal 
place  where  the  business  of  such  corporation  shall 

1  Paul  v.  Virginia,  8  Wall.  168;  Ducat  v.  Chicago,  10  «Z.  410;  Liverpool 
Ins.  Co.  v.  Massachusetts,  ibid.  566;  Phila.  Fire  Association  v.  New  York,  119 
U.  S.  110. 

2  Ins.  Co.  v.  Morse,  20  Wall.  445;  Doyle  v.  C.  Ins.  Co.,  94  U.  S.  535. 

3  Doyle  v.  C.  Ins.  Co.,  94  U.  S.  535. 

4  Home  Ins.  Co.  v.  Morse,  20  Wall.  445,  followed ;  Doyle  v.  C.  Ins.  Co.,  94 
U.  S.  535,  explained  to  decide  only  that  a  court  of  the  United  States  could 
not  enjoin  the  arbitrary  revocation  by  officers  of  a  state  of  a  license  previously 
granted  to  a  foreign  corporation. 

5  Tn  this  c;ise  an  engine  driver  of  a  foreign  railway  corporation. 

6  Barren  v.  Burnside,  121  U.  S.  186. 


FOREIGN   CORPORATIONS.  2C3 

be  carried  on  in  this  state,  and  an  authorized  agent  or 
agents,  residing  at  its  principal  place  of  business,  upon 
whom  process  may  be  served,"  is  sufficiently  complied 
with  by  a  certificate  naming  the  town  in  which  the 
business  is  to  be  carried  on  and  stating  "  that  the 
general  manager  of  said  corporation  residing  at  the 
said  principal  place  of  business,  is  the  agent  upon 
whom  process  may  be  served/7  but  not  giving  the  name 
of  the  general  manager.1  A  foreign  corporation  does 
not,  by  doing  a  single  act  of  business  in  another  state, 
as  for  instance,  by  contracting  to  sell  machinery,  come 
within  the  provisions  of  a  statute  of  that  state  forbid- 
ding foreign  corporations  to  "do  any  business"  within 
the  state.2  Every  one  who  deals  with  a  foreign  corpo- 
ration impliedly  subjects  himself  to  the  laws  of  the 
foreign  government  which  chartered  the  corporation, 
so  far  as  those  laws  affect  the  powers  and  obligations  of 
the  corporation  or  the  validity,  enforcement,  or  dis- 
charge of  its  contracts ;  thus,  for  instance,  a  holder  in 
the  United  States  of  bonds,  issued  by  a  railway  cor- 
poration of  Canada,  but  negotiated,  and  stipulated  to  be 
paid,  in  the  United  States,  is  bound  by  the  terms  of  a 
statutory  scheme  of  arrangement  enacted  by  the  Par- 
liament of  Canada  subsequently  to  the  issue  and  sale 
of  the  bonds.3  On  the  same  principle,  a  holder  in 
Louisiana  of  a  policy  of  life  insurance  issued  in  that 
state  by  a  Missouri  corporation  is  chargeable  with 
notice  of  the  insurance  laws  of  Missouri  substituting 
the  insurance  commissioner  of  that  state  as  the  repre- 
sentative of  insolvent  insurance  companies.4 

119.  The  XIII  Amendment  declares  that  "neither 
slavery  nor  involuntary  servitude  except  as  a  punish- 

1  Goodwin  v.  C.  M.  Ins.  Co.,  110  U.  S.  1. 

2  Cooper  Manfg.  Co.  v.  Ferguson,  113  U.  S.  727. 

*  C.  S.  Ry.  v.  Gebhard,  109  U.  S.  527.       *  Relfe  v.  Rundle,  103  U.  S.  222. 


264  XIII    AMENDMENT. 

ment  for  crime,  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States 
or  any  place  subject  to  their  jurisdiction,"  and  that 
"Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation,"  and  being  intended  to  abolish, 
involuntary  slavery  in  all  its  forms,  the  word  "  servi- 
tude "  is  used  therein  with  that  signification,  and  is  not 
to  be  construed  to  be  a  constructive  prohibition  of  the 
creation  of  monopolies  by  a  state,  such  as  the  exclusive 
right  of  providing  a  place  for  the  slaughtering  of  cattle.1 
Nor  does  the  amendment  warrant  congressional  leinsla- 

o  o 

tion  declaring  it  to  be  a  crime  to  conspire  to  deprive 
others  of  the  equal  protection  of  the  laws.2  The  amend- 
ment invalidates  an  express  warranty  made  in  March, 
1861,  upon  the  sale  of  a  slave  warranting  the  chattel  sold 
to  be  a  slave  for  life  and  the  warrantor's  title  to  him  to  be 
clear  and  perfect.  The  warrantor's  title  having  been 
divested  under  the  operation  of  the  amendment  by  vis 
major,  he  can  recover  on  a  note  given  for  the  price  of 
the  slave;3  and  a  promissory  note  made  before  the 
adoption  of  the  XIII  Amendment,  the  consideration 
for  which  note  was  the  price  of  a  slave,  is  enforcible 
after  the  adoption  of  that  amendment,  slavery  having 
been  lawful  by  the  lex  loci  contractus  at  the  time  the 
note  was  given.4 

120.  The  XIV  Amendment  declares,  that  "  no  state 
shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States ; 
nor  shall  any  state  deprive  any  person  of  life,  liberty, 
or  property,  without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of 
the  laws."  The  purposes  of  the  XIV  Amendment  are 

1  Slaughter  House  Cases,  16  Wall.  36. 

2  United  States  v.  Harris,  106  U.  S.  629. 
8  Osborne  v.  Nicholson,  13  Wall.  654. 

*  White  v.  Hart,  13  Wall.  646  ;  Boyce  v.  Tabb,  18  Wall.  546. 


XIV   AMENDMENT.  265 

to  define  citizenship  of  the  United  States  and  of  the 
states,  to  confer  citizenship  upon  negroes,  and  to  protect 
against  hostile  legislation  of  the  several  states  those  * 
privileges  and  immunities  of  citizenship  which  are  com- 
mon to  citizens  of  the  United  States,1  and  the  amend- 
ment extends  its  protection  to  all  natural  persons  within 
the  territorial  jurisdiction  of  the  United  States,  without 
regard  to  difference  of  race,  colour,  nationality,  or  citi- 
zenship,2 and,  within  any  state,  to  corporations  created 
by  that  state,3  but  not  to  corporations  created  by  other 
states.4  The  rights  -of  citizenship  which  are  pro- 
tected by  the  amendment  being  those  which  are  common 
to  the  citizens  of  the  United  States,  it  does  not  confer 
the  right  of  suffrage  on  women,  for  the  right  of  suffrage 
is  not  necessarily  a  privilege  or  immunity  of  citizenship  ;5 
nor  does  it  confer  upon  women  the  right  to  practice  law 
in  the  state  courts.6  Nor  does  the  amendment  interfere 
with  a  state's  exercise  of  the  police  power.7  A  state 
may,  notwithstanding  the  amendment,  prohibit  a  white 
and  a  negro  from  living  together  in  adultery  or  forni- 
cation under  more  severe  penalties  than  those  to  which 
the  parties  would  be  subjected  were  they  of  the  same 
race  and  colour,  for  there  is  in  such  legislation  no  dis- 
crimination against  any  persons  of  a  particular  race  or 
colour,  but  only  a  discrimination  against  the  designated 
offense.8  A  purchaser  of  premises,  under  and  subject 
to  a  legally  defective  mortgage,  can  riot  complain  of  an 
act  validating  the  mortgage  on  the  ground  that  it  de- 
prives him  of  property  without  due  process  of  law.'' 

1  The  Slaughter  House  Cases,  16  Wall.  36. 

2  Yick  Wo  v.  Hopkins;  Wo  Lee  v.  Hopkins  118  U.  S.  356. 

3  Santa  Clara  County  v.  S.  P.  B.  B.,  118  U.  S.  394,  396. 

4  Philadelphia  Fire  Association  v.  New  York,  119  U.  S.  110. 

5  Minor  v.  Happerset,  21  Wall.  163. 

6  Bn»d\vell  v.  The  State,  16  Wall.  130. 

7  Infra  Sec.  121.  8  Pace  v.  Alabama,  106  U.  S.  583. 
»  Gioss  v.  U.  S.  Mortgage  Co.,  108  U,  S.477. 


236  THE    POLICE    POWER. 

The  power  of  enforcement  by  appropriate  legislation 
vested  by  the  amendment  in  Congress,  does  not  author- 
JZ3  congressional  legislation  with  regard  to  individuals, 
for  the  amendment  restrains  state  and  not  individual 
action ;  it  has,  therefore,  been  held  that  Section  551  (J, 
Revised  Statutes  of  the  United  States,  declaring  it  to 
ba  a  crime  punishable  by  fine  and  imprisonment  for 
any  two  or  more  persons  to  conspire  to  deprive  any 
person  of  the  equal  protection  of  the  law  is  unconsti- 
tutional.1 It  has  also  been  held  that  the  Civil  Eights 
legislation  of  Congress2  declaring  that  all  persons 
within  the  jurisdiction  of  the  United.  States  shall  be 
entitled  to  the  full  and  equal  enjoyment  of  inns,  trans- 
portation facilities,  etc.,  and  subjecting  to  fine  and 
imprison  meat,  and  also  to  a  liability  to  damages  in  an 
action  at  law,  any  person  violating  the  provisions  of 
the  statute,  is  unauthorized  by  the  amendment,  the 
ground  of  decision  being  that  the  amendment  is  pro- 
hibitory of  state  legislation  and  action,  and  that,  there- 
fore, it  is  not  in  the  power  of  Congress  to  directly 
legislate  for  the  protection  of  individual  rights  against 
wrong  doing  by  individuals.3 

121.  The  police  power  is  that  function  of  govern- 
ment, by  the  exercise  of  which,  all  persons,  who  are 
subject  to  the  sovereignty  of  the  government  exercising 
the  power,  are,  for  ends  of  public  policy,  restrained  in 
their  use  or  enjoyment  of  some  right  of  person  or 
of  property.  The  police  power  may  attain  its  end  by 
absolutely  prohibiting  the  exercise  of  a  particular 
right,  or  by  so  regulating  the  exercise  of  that  right  as 
to  permit  its  use  under  conditions,  and,  if  the  power 
exists,  the  extent  to  which  it  may  be  exercised  in  any 
case  is  limited  only  by  the  will  of  the  government,  or 

1  United  States  v.  Karris,  106  IT.  S.  629. 

tt  Act  1  March,  1875,  18  Stat.  335.         3  Civil  Eights  Cases,  109  U.  S.  3. 


FEDEKAL    POLICE    POWER.  267 

the  department  thereof,  in  which  the  power  may  be 
vested,  unless  further  restraint  be  imposed  by  the  state 
Constitution.  It  is  clear  that  the  relation  between  the 
United  States  and  the  states  forbids  the  United  States 
to  exercise  within  the  territory  of  a  state  any  portion 
of  the  police  power.  Thus  in  United  States  v.  DeWitt,1 
the  facts  were,  that  Congress,  by  the  statute  of  2 
March,  1867,2  having  made  it  a  misdemeanour  to  offer 
for  sale  illuminating  fluid  inflammable  at  less  than  a 
specified  temperature,  and  DeWitt,  having  been 
indicted  and  convicted  under  that  statute  in  a  court  of 
the  United  States,  it  being  proven  that  the  offense  had 
been  committed  at  Detroit  in  the  state  of  Michigan, 
and  the  cause  having  been  certified  on  a  division  of 
opinion  between  the  judges  of  the  court  of  the  first 
instance,  the  court  held  that  the  statute,  as  a  police 
regulation  relating  exclusively  to  internal  trade,  could 
have  no  constitutional  operation  within  state  limits,  and 
could  only  have  effect  in  the  territories  and  in  the 
District  of  Columbia.  There  are  many  cases  in  which 
the  exercise  of  the  police  power  by  the  states  has  been 
sustained  by  the  court.  It  has  been  held,  that  a  state 
may  require,  under  a  penalty,  the  master  of  every  pas- 
senger-carrying vessel,  on  arriving  at  any  port  within 
the  state,  to  report  to  the  state  authorities  the 
name,  place  of  birth,  last  legal  settlement,  age,  and 
occupation  of  every  passenger;3  that  a  state  may 
prohibit  or  restrain  the  sale  of  wines,  or  liquors, 
imported  from  foreign  countries,  or  brought  within 
its  territory  from  another  state,  or  manufactured 
within  the  state;4  that  a  state  may  regulate  the 

1  9  Wall.  41.  2  14  Stat.  434. 

3  New  Yorkv.  Miln,  11  Pet.  102. 

4  The  License  Cases,  5  Flow    504;  Bartemeyer  ?-.  Tovra.  IS  Wall.  129  ;  Beer 
Co.  v.  Massachusetts  97  U.  S.  25 ;  Foster  v.  Kansas,  112  U.  S.  201  :  Mugler  v. 
Kansas,  123  U.  S.  623. 


268  STATE    POLICE    POWER. 

exercise  of  rights  of  fishing  in  its  navigable 
waters ; l  that  a  state  may  so  regulate  the  operation 
of  draw-bridges  over  navigable  waters,  that  the  traffic 
on  the  water  and  the  traffic  on  the  land  shall  be  so  con- 
ducted as  to  interfere  as  little  as  possible  with  each 
other;2  that  a  state  may  grant,  and  control  the  exer- 
cise of,  ferry  licenses  ;3  that  a  state  may  establish  port 
regulations,  prescribing  where  a  vessel  may  lie  in  har- 
bour, how  long  she  may  remain  there,  and  what  lights 
she  must  show  at  night  ;4  that  a  state  may  regulate  the 
rates  charged  by  a  private  warehouse  for  the  storage  of 
grain,  notwithstandingthefact  thatgrainbe  stored  therein 
in  course  of  interstate  transportation ; 5  that  a  state  may 
regulate  the  rates  of  fares  and  freight  charged  by  rail- 
ways in  interstate  transportation;6  that  a  state  may 
forbid,  under  a  penalty,  the  driving  of  an  engine  on  a 
railway  within  its  limits,  by  one  who  has  not  been 
licensed  by  a  state  Board  of  Examiners,  even  though 
the  engine-driver  be  engaged  in  moving  passengers  or 
freight  between  points  within  and  points  without  the 
state  ; 7  that  a  state  may  require  a  railway  to  maintain 
fences  and  cattle  guards,  and,  in  default  thereof,  be 
liable  for  double  damages ; 8  that  a  state  may  autho- 
rize a  municipality  to  forbid  the  use  of  steam-power  by- 
railways  within  its  municipal  limits;9  that  a  state  may 

1  Smith  v.  Maryland,  18  How.  71 ;  McCready  v.  Virginia,  94  U.  S.  391. 

2  Escanaba  Co.  v.  Chicago,  107  U.  S.  678. 

.  B  Fanning  v.  Gregoire,  16  How.  524,  534;  Conway  v.  Taylor,  1  Bl.  603. 

4  The  James  Gray  v.  The  John  Frazer,  21  How.  184. 

5  Munn  v.  Illinois,  94  U.  S.  113. 

6  Railway  Co.  v.  Fuller,  17  Wall.  560 ;  C.,  B.  &  Q.  R.  R.  t,.  Iowa,  94  U.  S. 
155 ;  Peik  v.  C.  &  N.  W.  Ry.,  ibid.  164 ;  Sed  cf.  W.  St.  L.  &  P.  Ry.  v.  Illinois, 
118  id.  557,  wherein  Miller,  J.,  said  that  in  Munn  v.  Illinois,  C.,  B,  &  Q.  R.  R. 
v.  Iowa,  and  Peik  v.  C.  &  N.  W.  Ry.,  the  question  of  the  exclusive  power  of 
Congress  to  regulate  interstate  transportation  charges,  though  presented,  "re- 
ceived but  little  attention  at  the  hands  of  the  court." 

7  Smith  v.  Alabama,  124  U.  S.  465.        *  -N.  P.  Ry.  v.  Humes,  115  U.  S.  512. 
9  E.  R.  Co.  v.  Richmond,  96  U.  S.  531. 


STATE    POLICE    POWER.  269 

forbid  washing  and  ironing  in  public  laundries  within 
definite  limits  and  between  prescribed  hours;1  that  a 
state  may  regulate  the  organizing,  drilling, and  parading 
of  military  bodies,  provided  that  such  legislation  does 
not  interfere  with  the  privileges  granted  by  the  militia 
laws  of  the  United  States  ;2  and  that  a  state  may  grant 
a  monopoly  of  the  slaughtering  of  cattle.3  It  has  also 
been  held,  that  a  contract  cannot  be  made  by  a  charter, 
binding  the  state  to  exempt  the  corporate  franchises  and 
property  from  the  operation  of  the  police  power  of  the 
state.4  It  has  also  been  held  that  a  license  granted  on 
payment  of  a  fee  by  the  United  States  under  the  In- 
ternal Revenue  Statutes  to  carry  on  the  business  of  a 
wholesale  liquor  dealer  in  a  state,  does  not  authorize 
the  licensee  to  carry  on  the  business  in  violation  of 
laws  of  the  state  prohibiting  the  traffic;5  nor  does  it 
exempt  the  licensee  from  state  taxation  on  the  business 
so  conducted;6  and  that  letters  patent  granted  for  an 
invention  do  not  confer  upon  the  patentee  the  right  of 
selling  the  patented  article,  within  the  territory  of  a 
state,  in  violation  of  a  police  regulation  of  the  state.7 
On  the  other  hand,  reference  may  be  made  to  the 
dictum  of  Marshall,  C.  J.,  in  Brown  v.  Maryland,8 

1  Barbier  v.  Connelly,  113  U.  S.  27;  Soon  Hing  v.  Crowley,  ibid.703.   But 
a  state  may  not,  under  pretence  of  regulating  public  laundries,  vest  in  a  mu- 
nicipality an  authority  arbitrarily  and  without  the  exercise  of  discretion,  to 
grant  or  refuse  permission  to  conduct  a  laundry:  Yick  Wo  v.  Hopkins;  Wo 
Lee  ^.Hopkins,  118  U.S.  356. 

2  Presser  v.  Illinois,  116  U.  S.  252. 

3  Slaughter  House  Cases,  16  Wall.  36  ;  Butchers'   Union  v.  C.  C.  Co  ,  111 
U.  S.  746. 

*  C.,  B.  &  Q.  K.  R.  v.  Iowa,  94  U.  S.  155  ;  Kuggles  v.  Illinois,  108  id.  526 ;  M. 
H.  &  N.  R.  R.  v.  Hamersly,  104  id.  1 ;  S.  V.  Water  Co.  v.  Schottler,  110  id.  347  ; 
Beer  Co.  v.  Massachusetts,  97  id.  25;  Boyd  v.  Alabama  94  id.  645;  Stone  v. 
Mississippi,  100  -id.  814;  Fertilizing  Co.  v.  Hyde  Park,  97  id.  659;  Butchers' 
Union  v.  Crescent  City  Co.,  Ill  id.  746. 

5  McGuire  v.  The  Commonwealth,  3  Wall.  387. 

6  Pervear  v.  The  Commonwealth,  5  Wall.  475. 

7  Patterson  v.  Kentucky,  97  U.  S.  501.  M2  Wheat.  447. 


270  STATE    POLICE    POWER. 

where  he  said,  with  regard  to  the  right  of  the  states  to 
control  the  sale  of  imported  goods,  "  sale  is  the  object 
of  importation,  and  is  an  essential  ingredient  of  that 
intercourse  of  which  importation  constitutes  a  part.  It 
is  as  essential  an  ingredient,  as  indispensable  to  the 
existence  of  the  entire  thing,  then,  as  importation  itself. 
It  must  be  considered  as  a  component  part  of  the  power 
to  regulate  commerce.  Congress  has  a  right,  not  only 
to  authorize  importation,  but  to  authorize  the  importer 
to  sell."  There  are  later  cases,  which  seem  to  fall 
within  the  line  of  that  dictum.  In  Sinnot  v.  Daven- 
port1 and  in  Foster  v.  Davenport,2  it  was  held  that  a 
state  cannot  require  the  owners  of  vessels  licensed  as 
coasters  by  the  United  States  to  file  with  the  authorities 
of  a  state  port  a  statement  in  writing  of  the  name  of  the 
vessel,  the  names  of  its  owners,  their  places  of  residence, 
and  the  amount  of  their  respective  interests  in  the 
vessel,  as  conditions  prerequisite  to  the  navigation 
of  the  waters  of  the  state  by  such  vessels.  In  Hall  v. 
De  Cuir 3  it  was  held  that  a  state  cannot  by  statute  re- 
quire u  those  engaged  in  the  transportation  of  pas- 
sengers among  the  states  to  give  to  all  persons  traveling, 
within  that  state,  upon  vessels  employed  in  such  busi- 
ness, equal  rights  and  privileges  in  all  parts  of  the 
vessel,  without  distinction  of  race  and  colour,"  nor  sub- 
ject "  to  an  action  for  damages  the  owner  of  such  a. 
vessel,  who  excludes  coloured  passengers,  on  account 
of  their  colour,  from  the  cabin  set  apart  for  the  use 
of  whites  during  the  passage."  In  R.  R.  v.  Husen,4 
it  was  held,  that  a  state  cannot  prohibit  the  driving  of 
certain  species  of  cattle  into  the  state  during  a  specified 
portion  of  the  year,  nor  permit  the  transportation  of 
such  cattle  through  the  state  at  any  other  time  of  year 

1  22  How.  227.  3  95  IT.  S.  485. 

2  22  How.  244.  *  95  U.  S.  465. 


STATE   POLICE    POWER.  271 

upon  condition  that  the  transporting  agent  "  shall  be 
responsible  for  all  damages  which  may  result  from  the 
disease  called  the  Spanish  or  Texan  fever,  should  the 
same  occur  along  the  line  of  transportation."  In  W. 
St.  L.  &  P.  Ry.  v.  Illinois,1  it  was  held  that  a  state 
cnnnot  "regulate  the  charges  by  railroad  companies 
within  its  limits  for  a  transportation  which  constitutes 
a  part  of  commerce  among  the  states."2  In  Bowman 
v.  C.  &  N.  W.  Ey.,3  it  was  held,  that  a  state  cannot 
forbid  a  common  carrier  to  bring  into  the  state  from 
another  state  intoxicating  liquors,  when  the  laws  of  the 
state  forbid  the  sale  of  such  liquors  by  unlicensed 
persons,  nor  does  such  state  legislation  relieve  a  common 
carrier  from  liability  in  damages  to  an  unlicensed  con- 
signee, who  has  been  injured  by  the  refusal  to  transport 
such  liquors.  It  is  not  easy  to  reconcile  the  cases.  If 
the  question  were  to  be  considered  upon  principle,  and 
apart  from  authority,  it  might  be  said  upon  the  one 
side,  that  the  autonomy  of  the  states  is  nothing  more 
than  a  name  if  they  are  not  to  be  permitted  to  exercise 
for  the  protection  of  the  lives,  health,  and  comfort  of 
their  citizens  the  ordinary  police  powers  of  govern- 
ment ;  and  that  the  constitutional  grant  to  the  govern- 
ment of  the  United  States  of  any  power  which  in  its 
exercise  may  affect  the  internal  concerns  of  a  state 
must  be  understood  to  have  been  granted  on  the  im- 
plied condition  that  its  exercise  is  to  be  subject  to  the 
police  power  of  the  state.  In  reply  to  this  it  might 
be  said,  upon  the  other  side,  that,  as  the  power  of 
police  involves  a  power  not  only  to  control,  but  also  to 

1  118  U.  S.  557.  The  facts  in  this  case  are  stated  in  full,  supra,  pp.  128 
et  seq. 

•  This  case  was  decided  before  the  enactment  of  the  Interstate  Commerce 
Act. 

3  To  be  reported  in  125  U.  S.,  and  in  which  cause  judgment  was  entered  on 
19  March,  1888. 


272  STATE    POLICE    POWEK. 

forbid,  the  constitutional  powers  granted  to  the  govern- 
ment of  the  United  States  would  be  nugatory  if  the 
government  of  the  state  might  veto,  under  the  pretense 
of  regulating.  Perhaps  the  rule  deducible  from  the 
cases  is,  that,  while  each  state  did  not,  by  the  adoption 
of  the  Constitution,  surrender  its  ordinary  local  powers 
of  self-government  -operative  upon  all  persons  and 
property  which  exist,  or  may  come,  within  its  territory, 
and  which  merge  in  the  mass  of  persons  and  property 
subject  to  its  jurisdiction,  yet,  nevertheless,  the  terri- 
torial limits  of  each  state's  jurisdiction,  the  grant  to  the 
government  of  the  United  States  of  powers  conflicting 
with  state  sovereignty,  and  a  due  regard  to  the  rights 
of  citizens  of  other  states,  must  be  held  to  limit  the 
exercise  by  each  state  of  its  otherwise  illimitable 
powers  of  police,  by  the  restriction  that  those  powers 
are  not  to  be  so  exercised  as  to  interfere  with  the  full 
execution  of  the  powers  granted  to  the  United  States. 
If  this  be  the  rule,  persons  or  property  brought  within 
the  territory  of  a  state  by  the  exercise  of  any  federal 
power,  must  be  exempted  from  obstructive  state  control 
until  the  federal  power  has  ceased  to  operate,  and  the 
persons,  or  property,  on  which  it  acted,  have  merged  in 
the  mass  of  persons,  or  property,  within  the  territory  of 
the  state.  On  the  same  principle,  federal  agencies  are 
exempted  from  any  such  state  regulation,  as  hinders  the 
agent  in  the  full  performance  of  his,  or  its,  duty  to  the 
government  of  the  United  States.  Of  course,  Congress 
may  so  legislate  with  regard  to  any  subject-matter  of 
federal  regulation,  as  it  has  heretofore  legislated  with 
regard  to  Quarantine  and  Pilotage,1  that  the  states  may 
be  enabled  to  rightfully  regulate  that  which  would 
otherwise  be  exempt  from  their  control. 

1  Supra,  Sections  46  and  47. 


CHAPTER  XII. 

THE   FEDERAL   SUPREMACY   AND   THE   RESERVED    RIGHTS 
OF  THE  STATES. 

122.  The  constitutional  declaration  of  the  federal  supremacy. 

123.  The  supremacy  of  the  Constitution. 

124.  The  supremacy  of  the  acts  of  Congress. 

125.  The  supremacy  of  treaties. 

126.  The  results  of  federal  supremacy. 

127.  The  constitutional  reservation  of  the  rights  of  the  states. 

128.  The  nature  and  extent  of  those  reserved  rights. 

129.  The  importance  of  the  preservation  of  the  rights  of  the  states. 

122.  Section   2  of  Article  VI  of  the  Constitution 
declares,  that  "  this  Constitution,  and  the  laws  of  the 
United    States    which    shall    be    made    in   pursuance 
thereof,  and  all  treaties  made,  or  which  shall  be  made 
under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land  ;  and  the  judges  in  every  state 
shall  be  bound  thereby,  anything  in   the  Constitution 
or  laws  of  any  state  to  the  contrary  notwithstanding." 
The  supreme  authority  is,  therefore,  first,  the  Constitu- 
tion ;  second,  the  laws  of  the  United  States  made  in 
pursuance  thereof;  and  third,  treaties  duly  made  under 
the  authority  of  the  United  States. 

123.  The  Constitution  is  the  Constitution  as  origin- 
ally ratified,    and    as    subsequently   amended   in    the 
manner  and  under  the  restrictions  contained  in  the  V 
Article   thereof,   and   as   construed   by   the  executive 
department  of  the  government,  so  far  as  regards  execu- 
tive action,  and  by  the  legislative  department  of  the 
government  so  far  as  regards  legislative  action,  and  by 
the  judicial  department  of  the  government  so  far  as 

18  273 


274  SUPREMACY   OF   LAWS. 

regards  all  rights  and  privileges  which  may  properly 
become  subjects  of  judicial  determination.  As  the 
three  departments  of  the  government  of  the  United 
States  are  co-ordinate  in  authority,  and  as  they  are 
alike  bound  to  obey  the  Constitution  as  a  paramount 
rule  of  action,  it  follows  that  each  must  determine  for 
itself,  so  far  as  regards  its  action  in  the  performance  of 
the  duties  delegated  to  it  by  the  Constitution,  what 
the  proper  construction  of  that  instrument  is. 

124.  The  supremacy  of  any  statute  of  the  United 
States  is  dependent  upon  its  constitutionality,1  but  an 
act  of  Congress  will    not,    on    slight   implication,  or 
vague   conjecture,  be  judicially    determined  to  be  in 
conflict  with  the  Constitution,   for  the  presumption  is 
always  in  favour  of   the  constitutionality  of   a  law.2 
Statutes,  which  are  constitutional  in   part  only,  will  be 
upheld  by  the  court  so  far  as  they  are  not  in  conflict 
with  the  Constitution,  provided  that  their  constitutional, 
and  their   unconstitutional,  parts   be  severable;3    but 
when  the  unconstitutional  parts  of  such  a  statute  are 
so  connected  with  its  general  scope,  that,  should  they 
be  stricken  out,  effect  cannot  be  given  to  the  legislative 
intent,  the  other  provisions  of  the  statute  must  fall 
with  them.4 

125.  In  the  order  of  supremacy,  treaties,  duly  rati- 
fied, are  of  inferior  authority  to  the  Constitution,  and 
to   constitutional   acts   of  Congress,5   but   they   are  of 

1  Marbury  v.  Madison,  1  Or.  137;  Norton  v.  Shelby  County,  118  U.  S.  442. 

2  Fletcher  v.  Peck,  6  Cr.  87 ;  The  Legal  Tender  Cases,  12  Wall.  531 ;  U. 
S.  v.  Harris,  106  U.  S.  629. 

:i  Packet  Co.  v.  Keokuk,  95  U.  S.  97. 

4  Allen  v.  Louisiana,  103  U.  S.  80;  Spraigue  v.  Thompson,  118  id.  90;  U. 
S.  v.  Harris,  106  U.  S.  629;  The  Virginia  Coupon  Cases,  114  id.  289,  305; 
Baldwin  v.  Franks,  120  U.  S.  678,  685;  The  Trade  Mark  Cases,  100  U.  S.  82. 

5  The  Cherokee  Tobacco,  11  Wall.  616;  Foster  v.  Neilson,  2  Pet.  253,  314; 
The  Head  Money  Cases,  112  U.  S.  580;  Baldwin  v.  Franks,  120  id.  678,  703; 
U.  S.  v.  McBratney,  104  id.  621,  623. 


SUPREMACY    OF    TREATIES.  275 

superior  authority  to  state  legislation,1  and  where  a 
treaty  declares  the  rights  and  privileges,  which  the 
citizens  or  subjects  of  a  foreign  nation  may  enjoy  in  the 
United  States,  it,  in  general,  operates  by  its  own  force, 
and  does  not  require  the  aid  of  any  congressional 
enactment.2  While,  as  respects  the  rights  and  obliga- 
tions of  the  contracting  governments,  a  treaty  is  to  be 
regarded  as  concluded  and  binding  from  the  date  of  its 
signature,3  yet  as  respects  the  effects  of  the  treaty  on  the 
rights  of  citizens  of  the  United  States  vested  before  the 
ratification  of  the  treaty  but  subsequently  to  its  signa- 
ture, the  treaty  is  not  to  be  considered  as  a  part  of  the 
supreme  law  of  the  land  until  after  its  ratifications  have 
been  exchanged,  for  the  Senate  may  in  process  of  ratifi- 
cation amend  the  treaty,4  and  it  cannot  be  known,  until 
it  be  ratified,  what  it  may  command  or  prohibit.5  Treaties 
do  not,  unless  they  be  in  express  terms  retroactive, 
affect  rights  vested,  or  liabilities  incurred,  before  their 
ratification.6 

120.  A  consideration  of  the  cases  which  have  been 
cited  in  the  preceding  chapters  of  this  book  leads  to  the 
conclusion  that  the  supremacy  of  the  government  of  the 
United  States,  within  its  constitutional  sphere  of  action, 
involves :  first,  the  exercise  of  judicial  power  by  the 
government  of  the  United  States  for  the  purposes  of 
enforcing  the  rights  created  by  the  Constitution,  laws, 


1  U.  S.  v.  43  Gallons  of  Whiskey,  93  U.  S.  188 ;  Hauenstein  v.  Lynham,  100 
id.  483. 

2  Chirac  r.  Chirac,  2  Wheat.  259;  Carneal  v.  Banks,  10  id.  181 ;  Hughes  r. 
Edwards.  9  id.  489,  496;  Haijenstein  v.  Lynham,  100  U.  S.  483 ;  sed  cf.  Bald- 
win r.  Franks,  120  U.  S.  678. 

3  Dana's  Wheaton's  International  Law,  36. 

*  Art.  II,  Section  2,  of  the  Constitution  requires  the  advice  and  consent  of 
the  Senate,  and  the  concurrence  of  two-thirds  of  the  Senators  present,  to  the 
making  of  any  treaty  by  the  President. 

5  U.  S.  v.  Arredondo,  6  Pet.  691,  749 ;  Haver  v.  Yaker,  9  Wall.  32. 

6  Prevost  v.  Greneaux,  19  How.  1  j  Frederickson  v.  Louisiana,  23  How.  445. 


276  RESERVED    RIGHTS    OF  STATES. 

and  treaties  of  the  United  States,  of  punishing  offenses 
against  the  laws  of  that  government,  and  of  finally  de- 
termining the  judicial  construction  of  the  Constitution, 
statutes,  and  treaties  of  the  United  States ;  second,  the 
exemption  of  all  property  and  agencies  of  the  federal 
government  from  state  control;  and  third,  the  non- 
exercise  by  the  states  of  powers  clashing  with  the 
powers  granted  by  the  Constitution  to  the  government 
of  the  United  States. 

127.  Articles  IX  and  X  of  the  Amendments  to  the 
Constitution  declare  that,  "the  enumeration  in  the  Con- 
stitution of  certain  rights  shall  not  be  construed  to  deny 
or  disparage  others  retained  by  the  people."  .     .    .  "  The 
powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  states,  are  reserved 
to  the  states  respectively,  or  to  the  people."     If  these 
amendments  had  never  been  adopted,  the  construction 
of  the  Constitution  as  a  whole  would  lead  inevitably  to 
the  conclusion  that,  in  so  far  as  the  states  are  not  con- 
trolled by  the  expressed  or  implied  restrictions  contained 
in  the  Constitution    of   the  United  States,  they  may 
severally  exercise  all  the  powers  of  independent  gov- 
ernments.1 

128.  The  nature  and  extent  of  the  reserved  rights  of 
the  states  must  be  determined  by  a  process  of  reasoning 
by  exclusion,  involving  a  statement  of  the  specific  consti- 
tutional restraints  upon  freedom  of  state  action,  and  a 
conclusion    that  any  state   may,  so  far  as  the  United 
States  are  concerned,  rightfully  exercise  every  power  of 
government  which  is  not  included  within  the  specific 
restraints   thus  enumerated.     A   consideration  of  the 
terms  of  the  Constitution  and  of  the  effect  of  the  judg- 
ments of  the  court,  which  have  been  cited  in  the  pre- 
ceding chapters  of  this  book,  renders  it  easy  to  formulate 

1  Supra,  Sec.  3. 


RESTRAINTS    ON    THE   STATES.  277 

a  statement  of  the  general  nature  of  the  constitutional 
restraints  upon  the  states.  By  force  of  those  restraints, 
a  state  cannot  withdraw  from  the  Union,  nor  deprive 
itself  of  its  rights  as  one  of  the  United  States,  nor 
emancipate  itself  from  the  constitutional  limitations 
upon  freedom  of  state  action  ;  it  cannot  have  any  inter- 
national relations  with  foreign  states,  nor  with  any  other 
of  the  United  States;  it  cannot  enter  into  treaties  with 
foreign  powers,  nor  make  interstate  compacts  ;  it  cannot 
engage  in  war,  unless  actually  invaded,  or  in  such  immi- 
nent danger  as  will  not  admit  of  delay  ;  it  cannot  grant 
letters  of  marque  and  reprisal ;  it  cannot  adopt  any  other 
than  a  republican  form  of  state  government,  nor  grant 
any  title  of  nobility  ;l  it  cannot  prescribe  the  conditions 
of  its  citizenship,  for  the  birth  within  the  United  States 
of  any  person  subject  to  their  jurisdiction,  or  the  nat- 
uralization of  any  person  under  the  acts  of  Congress,  fol- 
lowed, in  either  case,  by  residence  within  a  state  makes 
the  person  so  born  or  naturalized,  and  so  residing,  a 
citizen  of  that  state  ;  it  cannot,  in  its  regulation  of  the 
exercise  of  the  right  of  suffrage  by  its  citizens,  dis- 
criminate because  of  race,  colour,  or  previous  condition 
of  servitude  ;  it  cannot,  in  its  action  with  regard  to  its 
own  citizens  or  with  regard  to  temporary  denizens 
within  its  territory,  abridge  those  privileges  or  immu- 
nities which  are  common  to  citizens  of  the  United 
States,  nor  deprive  any  person  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law,  nor  deny  to  any  person 

1  Section  4  of  Article  TV  of  the  Constitution  requires  the  United  States  to 
"  guaranty  to  every  state  in  this  Union  a  republican  form  of  government."  It 
rests  with  Congress  to  decide  what  government  is  the  established  one  in  a 
state,  and  also  to  determine  upon  the  means  proper  to  be  adopted  to  fulfil  the 
guaranty  of  a  republican  form  of  government  to  the  states:  Luther  v.  Borden, 
7  How.  1,  42.  Chase,  C.  J.,  pointed  out  in  Texas  v.  White,  7  Wall.  727,  that 
this  constitutional  obligation  required  the  United  States, after  the  suppression 
of  the  Rebellion,  to  re-establish  the  representation  in  Congress  of  the  states 
lately  in  rebellion. 


278  CONSTITUTIONAL    RESTRAINTS. 

the  equal  protection  of  the  laws ;  it  cannot  deny  to  citi- 
zens of  other  states  those  privileges  and  immunities  of 
citizenship  which  it  allows  to  its  own  citizens ;  it  cannot 
tax  the  property  of  the  United  States,  nor  the  agencies 
employed  by  the  United  States  in  the  execution  of  its 
constitutional  powers  to  such  an  extent  as  to  interfere 
with  the  full  performance  by  such  agents  of  their  duties 
to  the  United  States,  nor  the  subjects  of  foreign  or 
interstate  commerce  in  such  a  manner  as  to  amount  to 
a  regulation  of  such  commerce,  nor  lay  any  imposts  or 
duties  on  imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws,  nor 
lay  any  duty  on  tonnage;  it  cannot  coin  money,  nor 
emit  bills  of  credit,  nor  make  anything  but  gold  and 
silver  coin  a  tender  in  payment  of  debts;  it  cannot,  by 
any  law  or  by  any  act  to  which  it,  by  its  enforcement 
thereof,  gives  the  force  of  a  law  deprive  a  party  of  the 
legal  right  of  enforcing,  or  obtaining  compensation  for 
the  breach  of,  an  express  and  valid  contract,  exe- 
cuted or  executory ;  it  cannot  regulate  commerce, 
foreign,  or  interstate,  or  with  the  Indian  tribes,  by 
obstructing,  or  burdening,  or  discriminating  against,  such 
commerce ;  it  cannot  exercise  judicial  jurisdiction  over 
persons  or  subject-matters  rightfully  withdrawn  by  the 
United  States  from  its  jurisdiction,  and  in  its  exercise 
of  jurisdiction  it  cannot  derogate  from  the  supremacy 
of  the  Constitution,  laws,  and  treaties  of  the  United 
States,  nor  fail  to  give  full  faith  and  credit  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other 
state ;  it  cannot  pass  any  bill  of  attainder  or  ex  post 
facto  law ;  and  it  cannot  so  exercise  its  powers  of  police 
regulation  as  to  interfere  with  the  exercise  of  the  con- 
stitutional powers  of  the  United  States,  or,  in  other 
words,  in  such  manner  as  to  operate  upon  persons  or 
property  brought  within  its  jurisdiction  in  the  exercise 


CONSTITUTIONAL   RESTRAINTS.  279 

of  powers  granted  to  the  United  States,  before  such 
persons  or  property  shall  have  lost  their  distinctive 
character  and  merged  in  the  mass  of  persons  or  prop- 
erty within  the  territory  of  the  state.  Such  are  sub- 
stantially the  constitutional  restraints  upon  the  powers 
of  the  states;  and  their  practical  effect  is,  that,  while 
limiting  the  powers  of  each  state  in  that  which  concerns 
foreign  nations,  and  in  that  which  affects  the  interests 
of  other  states,  and  of  the  citizens  of  those  other  states, 
it  yet  reserves  to  each  state  full  powers  of  self-govern- 
ment in  all  that  affects  only  the  interests  of  that  state, 
and  of  its  own  citizens. 

129.  The  Constitution  was  the  result  of  a  struggle 
between  contending  parties,  the  one  fearing  a  disin- 
tegration of  the  Union  as  a  consequence  of  the  weak- 
ness of  the  confederation, and  striving  to  create  a  nation, 
and  the  other  mindful  of  the  contest  for  the  inde- 
pendence of  the  colonies,  and  seeking  to  sacrifice  as 
little  as  possible  of  the  autonomy  of  the  states.  For- 
tunately for  the  peace  and  prosperity  of  the  country,  and 
for  the  permanency  of  its  free  institutions,  neither  party 
triumphed,  and  their  conflict  of  opinion  gave  birth  to 
a  government,  which,  though  national  in  its  relations  to 
foreign  powers,  and  in  the  directness  of  its  action  upon 
the  citizens  of  the  several  states,  is  also  federal  in  its 
reservation  to  the  states  and  the  people  of  all  powers 
not  expressly,  or  by  necessary  implication,  granted  to 
the  United  States.  The  distinguishing  characteristics 
of  the  Constitution,  thus  created,  are  the  limitation  in 
terms  of  the  powers  confided  to  the  United  States,  the 
reservation  to  the  states  of  the  right  of  local  self-gov- 
ernment, and  that  practical  conservatism,  which  is  the 
necessary  consequence  of  the  supremacy  of  a  written 
Constitution,  whose  manner  of  amendment  guards  it 
against  hasty  changes.  The  government  created  by 


280  THE    FEDERAL    EQUIPOISE. 

that  Constitution  has  stood  the  tests  of  time  and  growth ; 
its  nationality  has  survived  the  shocks  of  foreign,  and 
of  civil,  war;  and  its  recognition  of  the  principle  of 
home  rule  has  overcome  the  disintegrating  tendencies 
of  the  expansion  of  territory  and  the  increase  of  popu- 
lation. That  in  the  future  as  in  the  past  the  United 
States  may  escape  the  perils  of  dissolution  and  the 
dangers  of  consolidation,  it  is  necessary  that  its  Consti- 
tution be  maintained  in  its  integrity,  and  that  the  re- 
served rights  of  the  states,  and  the  supremacy  of  the 
United  States  within  the  limits  of  its  delegated  powers, 
be  alike  jealously  guarded.  So  long  as  that  just  equi- 
poise of  federal  and  of  state  power  shall  be  preserved, 
the  states,  united  for  the  promotion  of  the  general  wel- 
fare, and  independent  in  all  matters  of  merely  local 
concern,  will  triumph  over  all  that  may  menace  the  per- 
petuity of  their  free  institutions. 


INDEX. 


THE  REFERENCES  ARE  TO  THE  PAGES. 


ABOLITION  OF  SLAVERY. 

By  the  XIII  Amendment,  6. 
ADMIRALTY. 

Jurisdiction  in,  46,  196. 
AGENCIES. 

Of  United  States,  state  taxation  of,  28. 

Of  states,  federal  taxation  of,  23. 
ALLEGIANCE. 

Due  to  United  States  and  to  state,  7. 
ALLIANCES. 

By  states  forbidden,  189. 
ALIENS.    See  NATURALIZATION. 
AMBASSADORS. 

Jurisdiction  as  to,  196. 

APPELLATE  JURISDICTION.     See  JUDICIAL  POWER. 
ATTAINDER. 

Prohibition  of  bills  of,  182. 

Bills  of,  defined,  185. 
BANKS,  NATIONAL. 

Power  of  Congress  to  create,  10. 
BILLS  OF  ATTAINDER.     See  ATTAINDER. 
BILLS  OF  CREDIT. 

Prohibition  of  state,  187. 

Definition  of,  187. 

Illustrations  of,  187,  188. 
BILLS  OF  EXCHANGE. 

Dealing  in,  taxable  by  states,  62. 

As  in.struments  of  commerce,  40,  41. 
BILLS  OF  LADING. 

State  taxation  of,  72. 

281 


282  INDEX. 

BRIDGES. 

Regulation  of,  92. 

CASE. 

Requisites  of  a  judicial,  196,  211. 

CHARTERS. 

As  contracts,  171,  173. 
Implied  contracts  in,  174. 

CITIZENS. 

Federal  jurisdiction  in  suits  between,  197. 

Citizenship  of  the  United  States,  250. 

Citizenship  of  a  state,  252. 

The  right  of  suffrage  not  a  privilege  of  citizenship,  252. 

Discriminations  forbidden  in  state  regulation  of  suffrage,  252. 

Immunities  of,  256. 

CIVIL  RIGHTS. 

State  regulation  of  as  affecting  interstate  commerce,  54. 
Unconstitutionally  of  regulation  of,  by  the  United  States, 
266. 

COMMERCE. 

Regulation  of,  37. 

Constitutional  provisions  as  to,  37,  43. 

History  of  commerce  clause,  39. 

Definition  of,  40. 

Regulation  of,  defined,  41. 

Taxation,  as  regulation  of,  34,  42. 

Distinction  between  internal,  and  foreign  or  interstate,  44. 

Federal  action  in  regulation  of,  44. 

State  action  in  regulation  of,  45. 

Incidental  regulation  of,  59. 

COMPACTS.    See  ALLIANCES. 

CONFLICT  OF  JURISDICTION. 

The  rule  as  to,  between  state  and  federal  courts,  238. 

CONSTITUTION  OF  THE  UNITED  STATES. 
By  whom  ratified,  1. 
Effect  of  ratification  of,  1. 
Construction  of,  215. 
Supremacy  of,  273. 

CONSTRUCTION. 

Of  the  Constitution  by  the  judicial  power,  215. 


INDEX. 

CONTRACTS. 

Constitutional  prohibition  of  impairment  of  obligation  of,  145. 

"Law"  denned,  146. 

Obligation  of,  defined,  149. 

Regulation  of  remedies,  149. 

"Contracts"  defined,  153. 

Of  exemption  from  state  taxation,  159,  166. 

Made  by  states,  160,  164. 

History  of  the  clause,  160. 

Executory,  165. 

Charters  as,  171. 

With  political  subdivisions,  173. 

Implied,  in  charters,  175. 

Implied  exemption  from  taxation,  176. 

Implied  exemption  from  police  power,  178. 

As  affecting  suits  against  states,  180. 

The  force  and  effect  of  the  constitutional  prohibition,  181. 

COURTS-MARTIAL. 

Jurisdiction  of,  213. 

CURRENCY. 

Legal  tender,  12. 

DAMS. 

Regulation  of,  92. 

DIRECT  TAXES. 

Imposition  of,  by  United  States,  22. 

DUE  PROCESS  OF  LAW. 

Definition  of,  226. 

EQUAL  PROTECTION  OP  THE  LAWS.     See  XIV  AMEND- 
MENT. 

EXPORTS. 

State  taxation  of,  25,  82. 

Term  not  applicable  to  interstate  commerce,  73. 

Taxation  of,  by  United  States,  81. 

EX-POST  FACTO  LAWS. 

Prohibition  of,  182. 
Illustrations  of,  184,  185. 
Definitions  of,  183. 

EXPRESSED  RESTRAINTS. 
On  states,  4. 


284  INDEX. 

FERKIES. 

Regulation  of,  99. 
FOREIGN  CORPORATIONS. 

Rights  and  liabilities  of,  258. 

FOURTEENTH  AMENDMENT. 

As  affecting  the  exercise  of  judicial  power  by  the  states,  239. 

As  affecting  state  power  over  personal  and  property  rights  of 
citizens,  264. 
FUGITIVES  FROM  JUSTICE. 

State  obligations  as  to,  190. 

Jurisdiction  as  to  issue  of  habeas  corpus  in  cases  of,  191. 
GOODS. 

Taxation  of,  in  course  of  interstate  transportation,  73. 

GRANTS. 

As  contracts,  165. 
GUARANTY. 

Of  republican  government  to  the  states,  277. 
HABEAS  CORPUS. 

In  cases  of  fugitives  from  justice,  191. 

In  cases  of  restraint  of  liberty  in  violation  of  the  Constitu- 
tion, 209. 

HEALTH  LAWS.     See  QUARANTINE. 
IMMUNITIES  OF  CITIZENSHIP.    See  CITIZENS. 
IMPAIRING  CONTRACTS.    See  CONTRACTS. 
IMPARTIAL  SUFFRAGE.    See  CITIZENS. 

IMPEACHMENT. 

Jurisdiction  in,  213. 
IMPLIED  POWERS. 
Defined,  3. 
Necessity  of,  8. 
Grant  of,  9. 
Illustrations  of,  10,  11,  12. 

IMPLIED  RESTRAINTS. 

On  states,  4,  5. 
IMPORTS. 

State  taxation  of,  25,  82. 

Term  not  applicable  to  interstate  commerce,  73. 
IMPOSTS. 

State  imposition  of,  25,  81. 


INDEX.  285 

IMPROVEMENTS    OF    NAVIGATION.      See    NAVIGABLE 
WATERS. 

INCIDENTAL   POWERS   OF    CONGRESS.      See    IMPLIED 

POWERS. 
INDIAN. 

Tribes,  not  states,  143. 

Regulation  of  commerce  with,  144. 
INDICTMENT. 

Not  amendable  after  submission  to  the  grand  jury,  226. 
INFORMATION. 

Prohibition  of  prosecution  upon,  for  capital    or  infamous 
crimes,  226. 

INSOLVENT  LAWS. 

Effect  of  state,  155. 

INSPECTION  LAWS. 

State,  86. 

JUDGES. 

Tenure  of  office  of  federal,  194. 

Compensation  of,  not  diminishable  during  continuance  in 
office,  194. 

JUDICIAL  POWER. 

Necessity  of  federal,  192. 

Constitutional  provisions  as  to  federal,  194. 

Limited  grant  of  federal,  195. 

Federal  jurisdiction  in  criminal  causes,  200. 

Exclusive  federal  jurisdiction,  201,  204. 

Original  jurisdiction  of  the  Supreme  Court,  205. 

Removal  of  causes,  206. 

Appellate  jurisdiction,  208. 

Jurisdiction  in  habeas  corpus,  209. 

Jurisdiction  as  to  political  questions,  211. 

Courts-martial,  213. 

Military  commissions,  213. 

Impeachments,  213. 

Construction  of  the  Constitution,  by,  215. 

Suits  against  states,  198,  217. 

Limitation  of,  by  the  IV,  V,  VI,  and  VII  Amendments,  225. 

The  federal  supremacy  as  affecting,  231. 

The  reserved  rights  of  the  states  as  affecting  the  federal,  233. 

Of  the  states,  234. 


286  INDEX. 

JUDICIAL  POWER—  Continued. 

Of  the  states  as  affected  by  the  grant  of  judicial  power  to  the 
United  States,  234. 

Of  the  states  as  affected  by  the  XIV  Amendment,  239. 

Of  the  states  as  affected  by  section  1  of  Article  IV,  242. 
JUDGMENTS. 

As  contracts,  158. 

Effect  of  in  the  states,  242. 
JURISDICTION. 

Conflict  of.    See  CONFLICT  OF  JURISDICTION. 

JURISDICTION  OF  COURTS  OF  UNITED  STATES. 

Under  constitutional  grants  and  acts  of  Congress,  195. 
JURISDICTION  OF  STATE  COURTS. 

As  affected  by  the  Constitution,  234. 
JURY. 

Trial  by,  not  to  be  taken  away,  225,  229,  230,  231. 

Discriminations    forbidden    in    state    regulation    of    jury 
service,  253. 

LANDS. 

Public,  state  taxation  of,  27. 
LAWS  OF  UNITED  STATES. 
Supremacy  of,  274. 

LEGAL  TENDER. 

Power  of  Congress  over,  12. 
LICENSE  LAWS.    See  POLICE  REGULATION. 

LIFE,  LIBERTY,  AND  PROPERTY.    See  RIGHTS  OF  PER- 
SON AND  OF  PROPERTY. 
MERCHANDISE.    See  GOODS. 
NATIONAL  BANKS. 

Power  of  Congress  to  create,  10. 

Taxation  of,  by  states,  29. 
NATURALIZATION. 

Regulation  of  by  United  States,  251. 

Courts  of  the  states  may  admit  to  citizenship  under  acts  of 
Congress,  251. 
NAVIGABLE  WATERS. 

Defined,  45. 

Title  to  land  under,  47. 

Improvements  of,  87. 


IXDEX.  287 

NAVIGATION. 

Regulation  of  by  United  States,  50. 

Regulations  of  by  states,  55. 

Improvements  of,  87. 
ORDINANCE. 

Of  1787,  effect  of  on  regulation  of  commerce,  98. 

ORIGINAL  JURISDICTION.     See  JUDICIAL  POWER. 
PAINS  AND  PENALTIES. 

Prohibition  of  bills  of,  182,  186. 

Definition  of  bills  of,  186. 
PATENTS. 

Granted  by  United  States,  do  not  exempt  from  state  taxa- 
tion, 28. 

Nor  from  state  police  power,  269. 
PERSON,  RIGHTS  OF.    See  RIGHTS  OF  PERSON. 
PILOTAGE. 

Regulation  of,  107. 

POLICE  REGULATION. 

As  affecting  commerce,  175. 
Implied  exemption  by  contract  from,  178. 
Definition  of,  266. 
By  the  United  States,  267. 
By  the  states,  267. 
The  rule  as  to,  271. 
PORT  DUES. 

Imposition  of,  by  states,  120. 

PORT  REGULATIONS. 

Under  state  authority,  121. 

PORTS. 

Preferences  of,  122. 

PREAMBLE  OF  CONSTITUTION. 

Force  and  effect  of,  6. 

PRIVILEGES  OF  CITIZENSHIP.    See  CITIZENS. 
PROCESS  OF  LAW. 

Definition  of  due,  226. 

PROPERTY,  RIGHTS  OF.    See  RIGHTS  OF  PROPERTY. 
PUBLIC  LANDS.    See  LANDS. 
QUARANTINE. 

Regulation  of,  116. 


288  INDEX. 

RAILWAYS. 

State  regulation  of  interstate  transportation  by.  123. 
Tolls  for  use  of  improved  facilities  of  transportation,  124. 
State  police,  regulation  of,  125. 
State  taxation  of,  131. 

RATIFICATION. 

Of  Constitution,  effect  of,  1. 
RECEIPTS  OF  TRANSPORTATION. 

State  taxation  of,  132,  137,  138. 

RECORDS  AND  LAWS. 

Proof  of  in  other  states,  242. 
REGULATION. 

Of  commerce.     See  COMMERCE. 

Of  remedy.     See  CONTRACTS. 
REMEDY. 

Regulation  of.     See  CONTRACTS. 
REMOVAL  OF  CAUSES.     See  JUDICIAL  POWER. 
RESERVED  POWERS  AND  RIGHTS  OF  THE  STATES. 
See  STATES. 

RETROSPECTIVE  LAWS. 

Not  prohibited,  182. 

RIGHTS  OF  PERSON  AND  OF  PROPERTY. 

Constitutional  protection  of,  226. 

State  control  over,  254. 

As  affected  by  XIV  Amendment,  264. 
SECESSION. 

Unconstitutionality  of,  1. 
SELF-GOVERNMENT. 

Reservation  of  right  of,  to  the  states  in  local  matters,  279. 

SHIPPING. 

Regulation  of  by  United  States,  57. 
Regulation  of  by  states,  53. 
State  taxation  of,  63. 

STATES,  THE. 

Existence  of,  before  the  Constitution,  2. 
Foreign  to,  and  independent  of,  each  other,  so  far  as  not 
controlled  by  Constitution,  2. 

Powers  and  obligations  of  new,  2. 
Taxation  by,  23. 


INDEX. 

STATER,  THE— Continued. 

Suits  against,  as  affected  by  contracts,  180. 
Suits  against  as  affected  by  the  XI  Amendment,  198,  217 
Judicial  power  of,  as  affected  by  the  federal  supremacy,  231. 
Judicial  power  of  the  states  as  affected  by  the  grant  of 
judicial  power  to  the  United  States,  236. 

Judicial  power  of  the  states  as  affected  by  the  XIV  Amend- 
ment, 239. 

Reserved  rights  of,  276. 
Necessity  for  maintenance  of,  279. 

SUITS. 

Against  states.     See  STATES. 

SUPREMACY  OF  THE  UNITED  STATES. 

State  taxation  affected  by  the,  25. 

State  regulation  of  federal  judicial  process  or  practice,  231. 

Supremacy  of  the  Constitution,  272. 

Supremacy  of  the  laws  of  United  States,  274. 

Supremacy  of  the  treaties  of  United  States,  274. 

Effects  of  the,  275. 

SUPREME  COURT.    See  JUDICIAL  POWER. 

TAXATION. 

Defined,  18,  19. 
Power  of,  in  whom  vested,  19. 
By  United  States,  20. 

By  United  States,  constitutional  provisions  as  to,  21. 
Uniformity  of,  22. 
By  the  states,  23. 
Of  imports  and  exports,  25,  81. 
Of  state  agencies,  23. 
Of  federal  agencies,  28. 
Of  national  banks,  29. 
As  affected  by  contracts  of  exemption,  33. 
As  a  regulation  of  commerce,  34. 
Not  to  be  imposed  for  private  purposes,  20. 
Direct,  22. 

Discriminating  against  products  on  manufactures  of  other 
states,  75. 

TELEGRAPHS. 

Regulation  of,  140. 
State  taxation  of,  142. 

19 


290  INDEX. 

THIRTEENTH  AMENDMENT. 

Effect  of,  263. 
TITLES  OF  NOBILITY. 

Not  to  be  granted  by  the  states,  277. 
TONNAGE. 

Defined,  66. 

State  taxation  of,  25,  66. 
TRANSIT. 

Right  of,  not  liraitable  by  state  taxation,  28. 
TRANSPORTATION. 

By  water,  taxation  of,  by  United  States,  67. 

By  water,  taxation  of,  by  states,  68. 

By  land,  taxation  of,  by  states,  131. 
TRADE-MARKS. 

Regulation  of,  by  United  States,  67. 
TREATIES. 

Supremacy  of,  274. 
TRIAL  BY  JURY.     See  JURY. 
TRIBES.    See  INDIAN. 

UNION. 

Indissolubility  of,  1. 

UNITED  STATES. 

Limited  powers  of,  2. 

Supremacy  of,  3. 
WARRANTS. 

Requisites  to  issue  of  search,  225. 
WATER-WAYS.    See  NAVIGABLE  WATERS. 
WHARFAGE. 

Regulation  of,  105. 
WITNESSES. 

Right  of  accused  to  be  confronted  with,  229. 

Right  of  accused  to  have  compulsory  process  for  obtaining,  230. 


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